SUMMIT COUNTY PLANNING COMMISSION, Et Al., BUSINESS

IN THE SUPREME COURT OF OHIO

CASE NO. 13-1203

STATE EX REL. WEST MARKET PLAZA Original Action in Mandamus LIMITED PARTNERSHIP, et al.,

Relators,

SUMMIT COUNTY PLANNING

COMMISSION, et al.,

Respondents. ;;;^^;-,,,- ,,,•,,;,^r ^•;;. ^; ; _ ;,..,.....,, . ;s

REVISED MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT OF PROPOSED INTERVENING RESPONDENT WAL-MART REAL ESTATE BUSINESS TRUST CORRECTING EXHIBITS "D" AND "G" TO ITS ANSWER BY ADDING INADVERTENTLY OMITTED PAGES

Mark Wallach #0010948 Marvin D. Evans #0055616 Brian Heskamp #0083548 Assistant Prosecuting Attorney Thacker Martinsek LPA 53 University Avenue, 6th Floor 2330 One Cleveland Center Akron, Ohio 44308 1375 East 9t, Street Phone: (330) 643-2800 Cleveland, OH 44114 Fax: (330) 643-8708 Email: rnevans@ rosecutor.sununitoh.net Phone: (216) 456-3840 Summit County Fax: (216) 456-3850 Attorneys for Respondents Email: mwallach tml a.com Planning Commission, Summit County Pry, Summit County bheskam tml a.com Executive, Russell M. Engineer, Alan Brubaker, Summit County John Labriola, and Attorneys for Relators West Market Plaza ChiefBuilding Official, of Building Limited Partnership and Montrose Retail Summit County Department Associates Limited Partnership Standards Sheldon Berns #0000140 (Counsel of Record) Paul M. Greenberger #0030736 Jordan Berns #0047404 Timothy J. Duff #0046764 Berns, Ockner & Greenberger, LLC 373 3 Park East Drive, Suite 200 Beachwood, Ohio 44122 Phone: (216) 831-8838 Fax: (216) 464-4489 sberns bernsockner.com ngreenberRernbernso ckner.com 'berns bernsockner.com tduffbernsockner.com and

Thomas M. Tepe, Jr. #0071313 Amber Justice-Manning #0082301 Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 Phone: (513) 639-3947 Fax: (513) 579-6457 tteye ®,kmklaw.com aiustice-manning @ kmk1aw.co m

and

John Slagter #0055513 James S. Simon #0072770 Anthony R. Vacanti #0080834 Buckingham, Doolittle & Burroughs, LLP 3800 Embassy Parkway, Suite 300 Akron, Ohio 44333 Phone: (330) 258-6502 Fax: (330) 252-5502 j slaMerkbdblaw. com j simongbdblaw.com avacanti ®.bdblaw.com

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust MOTION TO INTERVENE

moves to Proposed Intervenor Wal-Mart Real Estate Business Trust ("Walmart") intervene under Civil Rule 24 to protect its interests and assert the defenses in its proposed

Answer, a copy of which is attached as Exhibit 1, and the arguments in its proposed Motion for

Judgment on the Pleadings, a copy of which is attached as Exhibit 2, both of which Walmart is also filing with the Court to comply with the timing requirements under S.Ct.Prac.R. 12.04(A)(1) and (B)(1).1 A memorandum in support is set forth below.

MEM0RA.':XDI `laa7 IN SUPPORT

1. Prelim.fna Statem..ent

Robert Stark and Herbert Newman, the principals of Relators, State ex rel, West Market

Plaza Limited Partnership and Montrose Retail Associates Limited Partnership, are the owners of a shopping center known as Rosemont Commons located in the City of Fairlawn, which is the

present site of a Walmart store and a Sam's Cub store.2 This action is part of a continuing,

anticompetitive effort orchestrated by Messrs. Stark and Newman to try to prevent Walmart from

moving the Walmart store and the Sam's Club store from Rosemont Commons to nearby

property that Walmart owns on Rothrock Road in Copley Township. There is no question that

Walmart is the target of Relators' Complaint in Mandamus and should be permitted to intervene

in this action to protect and defend its interests.

I Both Walmart's Answer and Motion for Judgment on the Pleadings have been revised to correct Exhibits "D" and "G" to the Answer by adding inadvertently omitted pages.

ZSee, generally, Relevant portions of the deposition testimony of Robert Stark and Thomas FitzSimmons, attached as Exhibit 3 and 4, in litigation challenging Fairlawn's efforts to close Rothrock Road, namely: Copley Township v. City of Fairlawn, Summit County Court of Common Pleas, Case No. 2011-07-4035, State ex rel. Woodman v. City of Fairlawn, et al., Summit County Court of Common Pleas, Case No. 2011-08-4237, and State ex rel. Pollok, et al. v. City of Fairlawn, et al., Su.iximit County Court of Common Pleas, Case No. 2012-02-1060. -1- II. Background

A. The Ongoing Anticompetitive iJftorts of Messrs. Stark and Newman to Prevent Walmart from Develo in Its Pro er on Rothrock Road in Co le Townshi .

An examination of Messrs. Stark and Newman's actions to date removes any doubt that

Walmart is the target of Relator's Complaint and that this action is simply a continuation of

Messrs. Stark and Newman's efforts to stop Walmart from moving the Walmart store and Sam's

Club store from Rosemont Commons to Walmart's property on Rothrock Road in Copley

Township. The blatant ongoing anticompetitive efforts of Messrs. Stark and Newman to prevent

Walmart from developing its property include the following:

(1) Two actions in the Summit County Court of Common Pleas.

In October 2008, Relators commenced an action seeking a mandatory injunction and writ of mandamus requiring the Summit County Engineer and the Summit County Planning

Commission to conduct a traffic impact study that Relators maintained was required under the

Subdivision Regulations. This action is known as State ex rel. West Market Plaza Limited

Partnership, et al. v. Bachman, Summit County Engineer, et al., Summit County Court of

Common Pleas, Case No. CV 2008-10-7231. (A copy of Relators' Amended Complaint, without

attachments, is attached as Exhibit 5.) Eventually, Relators, on the one hand, and the County

Engineer, the County Planning Commission, and the Summit County Executive, on the other

hand, entered into a settlement agreement, which, by its terms, was to become the judgment of

the common pleas court. But before the settlement entry could be approved by that court, the

previous owners of the property (now owned by Walmart) intervened as defendants, filing

counterclaims and cross-claims challenging the validity and enforceability of the settlement

agreement. The common pleas court refused to approve the settlement agreement, and although

the Relators dismissed their claims with prejudice, the counterclaims and cross-claims of the

-2- previous owners remained pending. (A copy of the court of common pleas' Order, entered

8/13/20, is attached as Exhibit 6, and a copy of Relators' Notice of Dismissal with Prejudice, filed 9/8/10, is attached as Exhibit 7.)

Then, in November 2011, Relators filed a complaint against the County Executive, the

County Engineer, and the County Planning Commission seeking specific performance of the settlement agreement. This case is known as State ex rel. West Market Plaza Limited

Partnership, et al. v. Summit County Planning Commission, et al., Summit County Court of

Common Pleas, Case No. CV Case No. 2011-11-6286. (A copy of Relators' Complaint, filed

1118111, is attached, without attachments, as Exhibit 8.) The court of common pleas eventually consolidated the two cases (the two cases now appear on the docket for Case No. 2008-10-7231) and allowed Walmart to intervene as a defendant. In their Complaint, Relators allege that

Walmart's project is a subdivision: "The Proposed Development also falls squarely within the

definition of a`major subdivision' under the Subdivision Regulations." (Compl., T 71.) This

issue-which is the principal issue in the original action before this Court-is also an issue in a

motion for summary judgment filed by Relators in the common pleas court on August 16, 2013.

(A copy of Relators' Motion for Summary Judgment, without attachments, is attached as Exhibit

9.)

(2) An original action in the Ninth District Court of Appeals, which has now been dismissed. in their complaint in In April 2011, seeking relief similar to the relief they seek

mandamus filed in this Court, Relators filed an original action in the Ninth District Court of

Appeals, known as State ex rel. Ohio West Market Plaza Limited Partnership, et al. v. Summit

-3- is known as State ex rel. Ohio County Planning Commission, 9th Dist. No. 25883.3 This case 9th Dist. No. Market Plaza Limited Parrnership, et al. v. Summit County Planning Commission,

25883. (A copy of Relators' Amended Petition for Writ of Prohibition, filed 4/21/11, is attached

as Exhibit 10, and a copy of Relators' Second Amended Petition, filed 4/20/12, is attached as

Exhibits 11.) On July 30, 2013, the same day Relators filed their Complaint in this Court, the

court of appeals dismissed Case No. 25883 based on the Relators' filing a notice of voluntary

dismissal. (A copy of the court of appeals' Journal Entry, entered 7/30/13, is attached as Exhibit

12.) of Fairlawn before the Environmental Review (3) Funding an appeal by the City Appeals Commission challenging the issuance of an environmental permit required for Walmart's project, which has now been dismissed.

In June 2011, the City of Fairlawn filed an appeal with the Environmental Review

Appeals Commission challenging the issuance of an environmental permit required for

Walmart's project, known as City of Fairlawn v. Nally, Director of Environmental Protection, et

ERAC Case No. 11-776532. (A copy of Fairlawn's Notice of Appeal, without attachments, al.,

is attached as Exhibit 13.) Fairlawn eventually moved to dismiss its appeal because it could not

"sufficiently support its claims ...." (A copy of Appellant's Motion to Dismiss Appeal, filed on

or about 8/9/12, is attached, without attachments, as Exhibit 14, and ERAC's Order for

Dismissal, issued 8/14/12, is attached as Exhibit 15.) Stark Enterprises funded Fairlawn's legal

fees for the appeal. (See Mr. FitzSimmons's deposition testimony attached as Exhibit 4.)

^------^ 3 Walmartmoved to intervene in the action, but the motion was eventually denied as moot when the action was dismissed. _4.. (4) Funding a series of lawsuits brought by the owner of an apartment complex challenging the zoning for Walmart's project-all of which have now been dismissed.

Fairway Park Properties, LLC, the owner of an apartment complex, has brought three actions challenging the zoning for Walmart's project: Fairway Park Properties, LLC v. Copley

Township, Summit County Court of Common Pleas, Case No. 2008-10-7435, Fairway Park

Properties, LLC v. LRC Development Co., LLC et al., Summit County Court of Common Pleas,

Case No. 2010-11-7463, and Fairway Park Properties, LLC v. Copley Township, Summit

County Court of Common Pleas, Case No. 2012-09-5472. (Copies of Fairway Park Properties,

LLC's Complaints, without attachments, are attached as Exhibits 16, 17, and 18.) All of these actions have been dismissed, the most recent one with prejudice. (A copy of the Stipulation and

Order of Voluntary Dismissal with Prejudice for Case No. 2012-09-5472, entered 4/8113, is

attached as Exhibit 19.) During trial testimony in the litigation challenging Fairlawn's efforts to

close Rothrock Road, Daniel Zarkovacki, Fairway Park Properties, LLC, managing partner,

testified that Messrs. Stark and Newman funded the litigation. (The court of common pleas

subsequently struck this testimony on the grounds of rclevance.) (Relevant excerpts from Mr.

Zarkovacki's testimony are attached as Exhibit 20.)

(5) A letter writing campaign to the U.S. Army Corps of Engineers, the Ohio Environmental Protection Agency, and the Ohio Department of Transportation.

Mr. Newman has sent letters to the U.S. Army Corps of Engineers, the Ohio EPA, and

the Ohio Department of Transportation in an effort to impede the development of Walmart's

property. (A copy a letter from Mr. Newman to the U.S. Army Corps of Engineers, dated

10/14/10, is attached as Exhibit 21; a copy of a letter from Mr. Newman to the Ohio EPA, dated

12/17/10, is attached as Exhibit 22; a copy of a second letter from Mr. Newman to the U.S. Army

Corps of Engineers, dated 5/23/11, is attached as Exhibit 23 and a copy of a letter from Mr.

-5- Newman to the Ohio Department of Transportation, dated 5/26/11, is attached as Exhibit 24.)

For example, in his letter to the U.S. Army Corps of Engineers dated October 14, 2010, Mr.

Newman makes clear that his goal is to retain the Walmart store and the Sam's Club store at

Rosemont Commons in Fairlawn, asserting that Rosemont Commons is a better alternative for an expanded Walmart store and Sam's Club store than Copley Township, stating that "[t]his alternative should be addressed in detail by Applicant and, failing a reasonable explanation of why this alternative is not possible, the Application should be denied." Mr. Newman goes on to attempt to bolster his assertion that Rosemont Commons is the better location by assuring the

Army Corps that "the City of Fairlawn has indicated on numerous occasions that it will provide whatever approvals are necessary to permit such expansion." (Id.)

(6) A letter writing campaign to Summit County officials and departments.

Mr. Newman has also sent letters to the County Executive, County Deparkment of

Development, County Department of Community & Economic Development, County Planning

Commission, and County Engineer in an effort to impede the development of Walmart's property. (Copies of letters sent by Mr. Newman dated 1/28/10, 6/17/10, 11/3/13, 3/14/11,

4/20/11, and 8/4/11 are attached as Exhibit 25.)

B. Relators' Com laint in This Action Tar et s Wainiart's Pro°ecto

Relators' Complaint in this action unquestionably targets Walmart's proposed project.

While Relators acknowledge that Copley Township has not issued a zoning certificate for

Walmart's project, which is a prerequisite for the existence of a final site plan, which is in turn a prerequisite for determining whether a project constitutes a subdivision, much of Relators'

Complaint consists of allegations trying to establish that Walmart's project constitutes a

-6- subdivision. Relators then assert that they are entitled to a writ of mandamus compelling the

County Executive, the County Engineer, and the County Planning Commission:

[T]o carry out the mandates of the Subdivision Regulations as applied to the Proposed Development, including, without limitation, ordering Wal-Mart to submit an application for a "Concept Plan Discussion" meeting and to submit copies of the concept plan, and, after all necessary approvals have been obtained, to comply with the Preliminary Plan Stage Procedure, the Improvement Plan Stage Procedure, and the Final Plat Stage Procedure, as specified in SCCO ¶ 1103.07.

(Compl. ¶ 117.) Relators go on to allege that they are entitled to a writ of mandamus compelling the County Executive, the County Engineer, and the County Planning Commission "to assert jurisdiction over the proposed Development pursuant to the Subdivision Regulations." (Compl.

¶ 118). With respect to their Count One, Relators demand:

That a writ of mandamus be issued on Count One, to order the County Planning Commission, the County Engineer, and the County Executive to direct the Developers (currently, Wal-Mart to submit the Proposed Development for review and approval pursuant to the Subdivision Regulations before the Proposed Development can be built.

(Compl., page 20.)

Relators also seek "ancillary temporary injunctive relief," in which they ask this Court to enjoin the County Building Official and Department of Building Standards from "altering the status quo by taking any action with respect to the Proposed Development that is inconsistent with the relief requested by Relators herein, including, but not limited to, issuing permits or otherwise authorizing the construction of the Proposed Development prior to or outside of the review of the Proposed Development required by the Subdivision Regulations pending this

Court's determination of the merits of this Petition," as well as asking the Court to enjoin the

County Executive, the County Engineer, and the County Planning Commission from "[a]ltering the status quo by taking any action with respect to the Proposed Development that is inconsistent

.,7- with the relief requested by Relators herein, including, but not limited to, issuing permits, certificates, recommendations, or approvals relating to the Proposed Development, or by authorizing in any way the construction of the Proposed Development prior to or outside of the review of the Proposed Development required by the Subdivision Regulation pending this

Court's determination of the merits of this Petition." (Compl. ¶¶ 121-122.) With respect to

Count Two, Relators demand an injunction:

[P]rohibiting the Respondents from granting any zoning certificates, building permits; or other such certificates or permits that would allow the Proposed Development to be constructed prior to a review of the Proposed Development pursuant to the Subdivision Regulations, pending the Court's determination of the merits of the Petition.

(Compl., pages 20-21.)

III. Uaw and Argumen.t

A. "i'he Right to Intervene Is Construeci iAberall y- iti F'avor of Intet•ventiorr.

Courts have a duty to construe the right to intervene liberally in favor of intervention.

State ex rel. Johnson v. Richardson, 131 Ohio St3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 9;

State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 1998-Ohio-190,

696 N.E.2d 1079, State ex rel. SuperAmerica Group v. Licking Cty. Bd of Elections, 80 Ohio

St.3d 182, 184, 1997-Ohio-347, 685 N.E.2d 507; State ex rel. Smith v. Frost, 74 Ohio St.3d 107,

108, 1995-Ohio-265, 656 N.E.2d 673.

B. Walmart Should Be Permitted to Intervene as a Matter of Right Under Civil Rule 24A.

Under Civil Rule 24(A), intervention as of right shall be permitted when, upon timely application, an applicant:

[C]laims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or

_g- impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The applicant must also have a legal interest in the action. Rumpke Sanitary Landfill, Inc. v.

Ohio, 128 Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 1161, ¶ 22. Walmart satisfies all of these requirements.

(1) Walmart claims, and has, an interest relating to the property or transaction that is the subject ofthe action-which is also a legally protectable interest.

In City of Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 115, ¶

34, this Court found that "[t]he rights related to property, i.e., to acquire, use, enjoy, and dispose of property ... are among the most revered in our law and traditions." (Emphasis added). The

Court went on to find that, "ri]ndced, property rights are integral aspects of our theory of de.mocracy and notions of liberty." Id. Accordingly, it cannot be said that Walmart does not have a legal right to defend against the unscrupulous attempts by Relators and their principals to prevent it from using and enjoying its property. Walmart's proposed development of the

Walmart store and Sam's Club store is not a subdivision and the Respondents named in this action have no legal right, let alone any authority, to require Walmart to apply for subdivision approval. It is apparent from Relators prior conduct that they will misuse any permitting process to attempt to prevent or delay the use and enjoyment by Walmart of its propcrty. Their attempt to require Walmart to obtain subdivision approval is no exception. Every permitting decision is subject to time consuming appeals, which are undoubtedly what Relators intend to pursue if they are successful in this action. Walmart not only claims, but it has, an interest relating to the property or transaction that is the subject of the action-which is also a legally protectable interest.

- 9 ^ (2) Walmart is so situated that disposition of this action may, as a practical matter, impair or impede its ability to protect its interests.

There can be no question that Walmart is "so situated that the disposition of this action

may, as a practical matter, impair or impede" its ability to protect its interests." Civ.R. 24(A). If the relief sought by Relators is granted, it will-by the very nature of the writ and injunction

sought-----(1) result in a determination that Walmart's project constitutes a subdivision, and (2) prevent Walmart from building its project until it has submitted an application for subdivision review and received the approvals required for subdivisions. And, as mentioned above, it will undoubtedly involve appeals brought by Relators or their principals. In short, if Walmart is not permitted to intervene, its ability to protect its interests will be impaired or impeded.

(3) Walmart has timely moved to intervene.

There also can be no question concerning the timeliness of Walmart's moving to intervene. The timeliness of a motion to intervene depends upon the facts and circumstances of the case. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503,

1998-Ohio-192, 696 N.E.2d 1058. In determining the timeliness of a motion to intervene, courts consider the following factors;

(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.

Id., quoting Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir. 1984). Here, Relators filed their complaint on July 30, 2013, and Walmart has promptly moved to intervene before the 21- day period for respondents to respond under S.Ct.Prac.R. 12.04(A)(1). Walmart's purpose for

-10- intervening is clear-it needs to protect its rights and to prevent the misuse of the courts to

unlawfully prevent it from using its property; No party can reasonably claim prejudice from the

timing of Walmart's moving to intervene.

(4) The existing parties do not adequately represent Walmart's interests.

Walmart's interests are definitely "not adequately represented by existing parties" in this lawsuit. As the United States Supreme Court has found, Civil Rule 24's requirement is "satisfied if the applicant shows that representation of his interest `may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of

America, 404 U.S. 528, 538 n.10 (1972); accord, Indiana Ins. Co. v. Murphy, 165 Ohio App.3d

812, 2006-Ohio-1264, 848 N.E.2d 889, ¶ 20 (3rd Dist.); Yeater v. Betson Enterprises, 7th Dist.

No. 04-BE-46, 2005-Ohio-6943, ¶ 30; Fairview Gen. Hosp, v. Fletcher, 69 Ohio App.3d 827,

835, 591 N.E.2d 1312 (10th Dist. 1990). Here, there can be no question that Walmart's interests as a property owner differ materially from the interests of the governmental bodies and officials that are the named respondents in this action. Those governmental bodies and officials simply do not share Walmart's interest in developing its property.

Accordingly, Walmart should be permitted to intervene as of right under Civil Rule

24(A).

C. Alternativei Walmart Should Be Permitted to Intervene Under Civil Rqte 24 B.

Under Civil Rule 24(B), permissive intervention should be allowed as follows:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

-11- Here, Walmart's defenses and the main action have questions of law or fact in common

and, in fact, concern virtually the same questions of law and fact. These common questions

include questions over whether Relators' complaint should be dismissed and questions over

whether Walmart's project is a subdivision and subject to the Subdivision Regulations.

Permitting Walmart to intervene will not unduly delay or prejudice the adjudication of the rights of the original parties. Consequently, even if this Court should determine that Walmart is not entitled to intervene as of right pursuant to Civil Rule 24(A), it should permit Walmart to intervene permissively under Civil Rule 24(B).

D. W almart Attaches the Pleading R!:uirc cl b Civil Rtile 24 C.

Finally, Civil Rule 24(C) requires that a pleading "setting forth the claim or defense for which intervention is sought" must accompany the motion to intervene. In accordance with Civil

Rule 24(C), Walmart's proposed Answer is attached as Exhibit 1. In addition, Walmart's proposed Motion for Judgment on the Pleadings is attached as Exhibit 2. To comply with the timing requirements of S.Ct.Prac. 12.04(A)(1), Walmart is also filing its Answer and its Motion for Judgment on the Pleadings with the Court.

IV. Conclusion

This is yet another lawsuit in an ongoing, anticompetitive effort orchestrated by Relators' principals to try to prevent Walmart from developing its property on Rothrock Road in Copley

Township for a Walmart store and a Sam's Club store. Denying Walmart's intervention would compromise its ability to protect its legitimate property interests. As a result, in accordance with

Civil Rule 24, Walmart's Motion to Intervene should be granted.

-12- Respectfully submitted,

J4i7 x " - "_' ^ Sheldon Berns #0000140 (C nsel Simon #0072770 Paul M. Greenberger 40030736 R. Vacanti #0080834 Jordan Berns #0047404 Buckingham, Doolittle & Burroughs, LLP Timothy J. Duff #0046764 3800 Embassy Parkway, Suite 300 Berns, Ockner & Greenberger, LLC Akron, Ohio 44333 3733 Park East Drive, Suite 200 Phone: (330) 258-6502 Beachwood, Ohio 44122 Fax: (330) 252-5502 Phone: (216) 831-8838 jsla ternbdblaw.com Fax: (216) 464-4489 asimongbdblaw.com sbern.s bernsockner.com avacanti a^bdblaw.com reenber er bernsockner.com 'berns bernsockner.com Attorneys for Proposed Intervening tduff?bernsockner. cozn Respondent Wal-Mart Real Estate Business Trust Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

-13- CEI7TIP`IC ATE OF SERVICE

I hereby certify that a copy of the foregoing Revised Motion to Intervene and

Memorandum in Support of Proposed Intervening Respondent Wal-Mart Real Estate Business

Trust Correcting Exhibits "D" and "G" to its Answer by Adding Inadvertently Omitted Pages has been sent by Regular U.S. Mail to the following this 29th day of August 2013:

Mark Wallach, Esq. Brian Heskamp, Esq. Thacker Martinsek LPA 2330 One Cleveland Center 1375 East 9^' Street Cleveland, OH 44114

Attorneys for Relators West Market Plaza Limited Partnership and Montrose Retail Associates Limited Partnership

Marvin D. Evans, Esq. Assistant Prosecuting Attorney 53 University Avenue, 6th Floor Akron, Ohio 44308

Attorneys for Respondents Summit County Planning Commission, Summit County Executive, RusselllVl. Pry, Summit County Engineer, Alan Brubaker, Summit County ChiefBuilding Official, John Labriola, and Summit County Department of Building Standards

the AttotneYVA^ Proposed In1 evening dent Wa - art Real Estate Business Trust

-14- Exhibit 1

.5! IN THE SUPREME COURT OF OHIO

CASE NO. 13-1203

STATE EX REL. WEST MARKET PLAZA Original Action in Maqdamus LIMITED PARTNERSIiIP, et aZ,

Relators,

SUMMIT COUNTY PLANNING

COMMISSION, et al.,

Respondents.

REVISED ANSWER TO COMPLAINT IN MANDAMUS OF PROPOSED INTERVENING RESPONDENT WAL-MART REAL ESTATE BUSINESS TRUST CORRECTING EXHIBITS "D" AND "G" BY ADDING INADVERTENTLY OMITTED PAGES

Mark Wallach #0010948 Marvin D. Evans #0055616 Brian Heskamp #0083548 Assistant Prosecuting Attorney Thacker Martinsek LPA 53 University Avenue, 6Floor 2330 One Cleveland Center Akron, Ohio 44308 1375 East 9th Street Phone: (330) 643-2800 Cleveland, OH 44114 Fax: (330) 643-8708 Phone: (216) 456-3840 Email: mevans &prosecutor.summitoh.net Fax: (216) 456-3850 Email: [email protected] Attorneys for Respondents Summit County bheskamp&tmlpa.com Planning Commission, Summit County Executive, Russell M. Pry, Summit County Attor. neys for Relators West Market Plaza Engineer, Alan Brubaker, Summit County Limited Partnership and Montrose Retail ChiefBuilding Official, John Labriola, and Associates Limited Partnership Summit County Department of Building Standards -2- Sheldon Berns #0000140 (Counsel of Record) Paul M. Greenberger #0030736 Jordan Bems #0047404 Timothy J. Duff #0046764 Berns, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, Ohio 44122 Phone: (216) 831-8838 Fax: (216) 464-4489 [email protected] pgreenberger @,bernsockner.com [email protected] tduff bernsockner.com

and

John Slagter #0055513 James S. Simon #0072770 Anthony R. Vacanti #0080834 Buckingham, Doolittle & Burroughs, LLP 3800 Embassy Parkway, Suite 300 Alcron, Ohio 44333 Phone: (330) 258-6502 Fax: (330) 252-5502 jsla er abdblaw.com _jsimon@,bdblaw.com avacanti bdblaw.com

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

-3- Proposed Intervening Respondent, Walmart Real Estates Business Trust ("Walmart"), in answer to the Complaint in Mandamus ("Complaint"), states as follows:

1. Walmart admits that Relator West Market Plaza Limited Partnership ("West

Market") owns and operates a shopping center at the intersection of West Market St. and

Cleveland-Massillon Road in Summit County, Ohio, and otherwise denies the allegations in

Paragraph 1 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

2. Walmart admits that Relator Montrose Retail Associates Limited Partnership

("Montrose Retail") owns and operates a shopping center at the intersection of West Market St. and Cleveland-Massillon Road in Summit County, Ohio, and otherwise denies the allegations in

Paragraph 2 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

3. No response is required to the allegations in Paragraph 3 of the Complaint.

4. Walmart admits the allegations in Paragraph 4 of the Complaint.

5. Walmart admits the allegations in Paragraph 5 of the Complaint.

6. Walmart admzts the allegations in Paragraph 6 of the Complaint.

7. Walmart admits the allegations in Paragraph 7 of the Complaint.

8. Walmart admits the allegations in Paragraph 8 of the Complaint.

9. Walmart denies the allegations in Paragraph 9 of the Complaint.

10. Walmart admits that subdivisions of real property in Summit County are governed in part by the subdivision regulations contained in Part 11 (the "Subdivision Regulations") of

Summit County Codified Ordinances ("SCCO"), states that the Subdivision Regulations speak for themselves, and otherwise denies the allegations in Paragraph 10 of the Complaint.

-4- 11. In response to Paragraph 11 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 11 of the

Complaint.

12, In response to Paragraph 12 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 12 of the

Complaint.

13. In response to Paragraph 13 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 13 of the

Complaint.

14. In response to Paragraph 14 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 14 of the

Complaint.

15. In response to Paragraph 15 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 15 of the

Complaint.

16. In response to Paragraph 16 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 16 of the

Complaint for lack of information or knowledge suffiicient to form a belief as to their truth.

17. In response to Paragraph 17 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 17 of the

Complaint.

-5- 18. In response to Paragraph 18 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 18 of the

Complaint.

19. In response to Paragraph 19 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 19 of the

Complaint.

20. In response to Paragraph 20 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 20 of the

Complaint.

21. In response to Paragraph 21 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 21 of the

Complaint.

22. In response to Paragraph 22 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 22 of the

Complaint.

23. In response to Paragraph 23 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 23 of the

Complaint.

24. In response to Paragraph 24 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 24 of the

Complaint.

-6- 25. In response to Paragraph 25 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 25 of the

Complaint.

26. In response to Paragraph 26 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 26 of the

Complaint.

27. In response to Paragraph 27 of the Complaint, Walmart admits that it proposes to develop property in Copley Township, denies that the proposed development includes a gas station, affirmatively avers that the proposed development includes a fuel station (accessory use) as described in Copley Township's Zoning Resolution, and otherwise denies the allegations in

Paragraph 27 of the Complaint.

28. Walmart admits the allegations in Paragraph 28 of the Complaint.

29. Walmart denies the allegations in Paragraph 29 of the Complaint.

30. Walmart denies the allegations in Paragraph 30 of the Complaint.

31. Walmart denies the allegations in Paragraph 31 of the Complaint.

32. Walmart denies the allegations in Paragraph 32 of the Complai.nt.

33. Walmart denies the allegations in Paragraph 33 of the Complaint.

34. Walmart denies the allegations in Paragraph 34 of the Complaint.

35. Walmart denies the allegations in Paragraph 35 of the Complaint.

36. Walmart denies the allegations in Paragraph 36 of the Complaint.

37. Walmart denies the allegations in Paragraph 37 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

-7- 38. In response to Paragraph 38 of the Complaint, Walmart states that in or around

June 2010, LRC Development Co. submitted a zoning application to Copley Township in relation to the proposed development of property on Rothrock Road, and otherwise denies the allegations set forth in Paragraph 38 of the Complaint.

39. Wahnart denies the allegations in Paragraph 39 of the Complaint.

40. In response to Paragraph 40 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 40 of the

Complaint.

41. In response to Paragraph 41 of the Cornplaint, Walmart admits that the language appearing within quotation marks accurately quotes a portion of the letter attached as Exhibit 5 to the FitzSimmons Affidavit, and otherwise denies the allegations in Paragraph 41 of the

Complaint.

42. In response to Paragraph 42 of the Complaint, Walmart admits that the language appearing within quotation marks accurately quotes a portion of the letter attached as Exhibit 5 to the FitzSimmons Affidavit, and otherwise denies the allegations in Paragraph 42 of the

Complaint.

43. In response to Paragraph 43 of the Complaint, Walmart admits that Exhibit 7 attached to the FitzSimmons Affidavit contains selections from a deposition of Alan Brubaker, and states that the deposition testimony speaks for itself, and affirmatively avers that Mr.

Brubaker acknowledged that he was incapable of rendering a legal opinion concerning whether the proposed development of property is a subdivision under the Subdivision Regulations.

Walmart otherwise denies the allegations in Paragraph 43 of the Complaint.

8 44. Walmart admits the allegations in Paragraph 44 of the Complaint except that

Walmart affirmatively avers that the term "Proposed Development" does not accurately describe the proposed development of property owned by Walmart.

45. Walrnart admits the allegations in Paragraph 45 of the Complaint.

46. Walmart denies the allegations in Paragraph 46 of the Complaint.

47. Walmart admits the allegations in Paragraph 47 of the Complaint, except that

Walmart affirmatively avers that the term "Proposed Development" does not accurately describe the proposed development of property owned by Walmart, and further affirmatively avers that the consolidation of parcels was not a subdivision regulated by the Subdivision Regulations.

48. Walmart denies the allegations in Paragraph 48 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

49. In response to Paragraph 49 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 49 of the

Complaint.

50. Walmart denies the allegations in Paragraph 50 of the Complaint. Walmart affirmatively avers that Robert Henwood left his employment with Summit County on May 25,

2012. A certified copy of Mr. Henwood's resignation letter is attached as Exhibit A and a certified copy of Mr. Henwood's Personnel Action reflecting that his employment with Summit

County ended on May 25, 2012, is attached as Exhibit B.

51. Walmart denies the allegations in Paragraph 51 of the Complaint. Walmart affirmatively avers that Robert Henwood left his employment with Summit County on May 25,

2012.

r9- 52. Walmart denies the allegations in Paragraph 52 of the Complaint. Walmart affirmatively avers that Robert Henwood left his employment with Summit County on May 25,

2012.

53. Walmart denies the allegations in Paragraph 53 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

54. Walmart denies the allegations in Paragraph 54 of the Complaint. Walmart affirmatively avers that Robert Henwood left his employment with Summit County on May 25,

2012, and as a result he could not have prepared the referenced memorandum on June 26, 2013.

Walmart affinnatively avers that this memorandum was actually prepared on November 24,

2010. A certified copy of the November 24, 2010 memorandum, along with a certification indicating that it was created on November 24, 2010, and modified only once, also on November

24, 2010, is attached as Exhibit C. Walmart also affirmatively avers that it submitted revised plans to Copley Township on June 28, 2013, which, among other things, designates its project a commercial condominium. A certified copy of these revised plans (reduced size), with a certification reflecting that they were received by Copley Township on June 28, 2013, is attached as Exhibit D.

55. Walmart denies the allegations in Paragraph 55 of the Complaint.

56. Walmart denies the allegations in paragraph 56 of the Complaint.

57. Walmart denies the allegations in paragraph 57 of the Complaint.

58. Walmart denies the allegations in paragraph 58 of the Complaint.

59. In response to Paragraph 59 of the Complaint, Walmart denies that the term

"Montrose Area" is sufficiently defined as a matter of fact, law, or both, and therefore denies the allegations in Paragraph 59 of the Complaint.

-10- 60. In response to Paragraph 60 of the Complaint, Walmart denies that the term

"Montrose Area" is sufficiently defined as a matter of fact, law, or both, and therefore denies the allegations in Paragraph 60 of the Complaint.

61. In response to Paragraph 61 of the Complaint, Walmart denies that the term

"Montrose Area" is sufficiently defzned as a matter of fact, law, or both, and therefore denies the allegations in Paragraph 61 of the Complaint.

62. In response to Paragraph 62 of the Complaint, Walmart denies that the term

"Montrose Area" is sufficiently defined as a matter of fact, law, or both, and therefore denies the allegations in Paragraph 62 of the Complaint.

63. In response to Paragraph 63 of the Complaint, Walmart admits that quoted language accurately quotes portions of the letter attached as Exhibit 5 to the FitzSimmons

Affidavit, states that the letter speaks for itself, and otherwise denies the allegations in Paragraph

63 of the Complaint.

64. Walmart denies the allegations in Paragraph 64 for lack of information or knowledge sufficient to form a belief as to the truth of those allegations.

65. Walmart adm'rts the allegations in Paragraph 65 of the Complaint.

66. Walmart admits the allegations in Paragraph 66 of the Complaint.

67. Wahnart denies the allegations in Paragraph 67 of the Complaint.

68. Walmart denies the allegations in Paragraph 68 of the Complaint.

69. Walmart denies the allegations in Paragraph 69 of the Complaint.

70. Walmart denies the allegations in Paragraph 70 of the Complaint.

71. Waltnart denies the allegations in Paragraph 71 of the Complaint.

72. Walmart denies the allegations in Paragraph 72 of the Complaint.

- 11 - 73. Walmart denies the allegations in Paragraph 73 of the Complaint.

74. In response to Paragraph 74 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 74 of the

Complaint.

75. Walmart denies the allegations in Paragraph 75 of the Complaint,

76. Walmart denies the allegations in Paragraph 76 of the Complaint.

77. Walmart denies the allegations in Paragraph 77 of the Complaint.

78. Walmart denies the allegations in Paragraph 78 of the Complaint.

79. In response to Paragraph 79 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 79 of the

Complaint.

80. In response to Paragraph 80 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph 80 of the

Complaint.

81. Walmart denies the allegations in Paragraph 81 of the Complaint and affirmatively avers that it has a right of access off Rothrock Road.

82. In response to Paragraph 82 of the Complaint, Walmart states that the Subdivision

Regulations speak for themselves and otherwise denies the allegations in Paragraph , 82 of the

Complaint.

83. In response to Paragraph 83 of the Complaint, WalmarF admits that LRC

Development Co. commissioned preparation of a traffic impact study relating to its proposed development of property owned by Walmart, states that the traffic impact study speaks for itself, and otherwise denies the allegations in Paragraph 83 of the Complaint.

-12- 84. In response to Paragraph 84 of the Complaint, Walmart admits that the of City of

Fairlawn has closed the portion of Rothrock Road lying on the border of its territory, making the portion of Rothrock Road along Walmart's property a long cul de sac and, in the event that

Rothrock Road remains closed, which is the subject of additional lawsuits that are currently on appeal in the Ninth District Court of Appeals, making many of the improvements proposed on

Walmart's plans no longer necessary (or in some instances no longer even permitted as is the case with the traffic light in front of the entrance to the stores that will now no longer be warranted).

85. Walmart denies the allegations in Paragraph 85 of the Complaint.

86. Walmart denies the allegations in Paragraph 86 of the Complaint.

87. Walmart denies the allegations in Paragraph 87 of the Complaint.

88. Walmart denies the allegations in Paragraph 88 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

89. Walmart admits that Relators have repeatedly demanded that the County Planning

Commission, the County Engineer, and the County Executive subject the proposed development of property owned by Walmart to the requirements of the Subdivision Regulations on June 17,

2010, November 3, 2010, March 14, 2011, April 20, 2011, August 4, 2011 and July 23, 2013, and otherwise denies the allegations in Paragraph 89 of the Complaint. Walmart affiYrnatively avers that the County responded to some of these letters. In a letter dated June 21, 2010, responding to the letter dated Juune 17, 2010, Connie Krauss, Director of the Summit County

Department of Community & Economic Development, informed Herbert Newman, one of the principals of West Market and Montrose Retail, that no proposal or application for Pl.amvng

Commission review had been submitted and that, in any event, an application would be

-13- premature because Copley Township had not yet issued a zoning certificate. A certified copy of this letter is attached as Exhibit E. In a letter dated July 28, 2010, from Robert McDowall, an

attorney in the County Executive's law department, to an assistant county engineer, discussed

Mr. Newman's June 17, 2010 letter and Ms. Krauss's June 21, 2010 letter and emphasized that

until Copley Township completed its review any determination about whether the development

of Walmart's property constituted a subdivision would be premature. A certified copy of this

letter is attached as Exhibit F. In a letter dated December 10, 2010, Jason Dodson, the County

Executive's Chief of Staff, referencing a large amount of enclosed material, asked the County

Prosecutor for a legal opinion concerning whether the development of Walmart's constituted a

subdivision. A certified copy of this letter is attached as Exhibit G. In Prosecutor Opinion

Number 11-059, dated March 3, 2011, the County Prosecutor found that insufficient information

existed to make a determination. A certified copy of this letter is attached as Exhibit H.

90. Walmart denies the allegations in Paragraph 90 of the Complaint.

91. In response to Paragraph 91 of the Complaint, Walmart states that the draft

Memorandum of Understanding speaks for itself and otherwise denies the allegations in

Paragraph 91 of the Complaint.

92. Walmart denies the allegations in Paragraph 92 of the Complaint.

93. ln response to Paragraph 93 of the Complaint, Walmart admits that it accurately

quotes selected portions of the letter from the County Engineer to Copley Township dated

October 18, 2011, states that the letter speaks for itself, and otherwise denies the allegations in

Paragraph 93 of the Complaint.

-14- 94. In response to Paragraph 94 of the Complaint, Walmart states that the letter attached as Exhibit 21 to the FitzSimmons Affidavit speaks for itself, and otherwise denies the allegations in Paragraph 94 of the Complaint.

95. Walmart denies the allegations in Paragraph 95 of the Complaint for lack of information or knowledge sufficient to form a belief as to the truth of those allegations.

96. Walmart admits the allegations in Paragraph 96 of the Complaint, except that it affirmatively avers that the term "Proposed Development" does not accurately describe the proposed development of property owned by Walmart.

97. In response to Paragraph 97 of the Complaint, Walmart states that the

Development Agreement speaks for itself and otherwise denies the allegations in Paragraph 97 of the Complaint.

98. In response to Paragraph 98 of the Complaint, Walmart states that the

Development Agreement speaks for itself and otherwise denies the allegations in Paragraph 98 of the Complaint.

99. In response to Paragraph 99 of the Complaint, Walmart states that the

Development Agreement speaks for itself and otherwise denies the allegations in Paragraph 99 of the Complaint.

100. In response to Paragraph 100 of the Complaint, Walmart admits that the County

Executive, the County Planning Commission, and the County Engineer have not required the proposed development to be approved pursuant to the procedures set forth in the Subdivision

Regulations, affirmatively avers that the County Executive, the County Planning Commission, and the County Engineer have no authority to require the proposed development to be approved

-15- pursuant to the procedures set forth in the Subdivision Regulations, and otherwise denies the allegations in Paragraph 100 of the Complaint.

101. Walmart denies the allegations in Paragraph 101 of the Complaint for lack of knowledge or information sufficient to form a belief about the truth of those allegations.

102. In response to Paragraph 102 of the Complaint, Walmart states that the April 9,

2013 letter from Deborah Matz speaks for itself and otherwise denies the allegations in

Paragraph 102 of the Complaint.

103. In response to Paragraph 103 of the Complaint, Walmart states that the April 9,

2013 letter from Deborah Matz speaks for itself and otherwise denies the allegations in

Paragraph 103 of the Complaint.

104. In response to Paragraph 104 of the Complaint, Walmart states that the October

27, 2011 email from Rob Henwood to John Walsh speaks for itself and otherwise denies the allegations in Paragraph 104 of the Complaint.

105. Walmart denies the allegations in Paragraph 105 of the Complaint.

106. In response to Paragraph 106 of the Complaint, Walmart admits that the proposed development of property owned by Walmart involves a larger area than the development proposed for a Gordon Food Service on Rothrock Road in Copley Township, affirmatively avers that the tenn "Proposed Development" does not accurately describe the proposed development of property owned by Walmart, and otherwise denies the allegations set forth in Paragraph 106 of the Complaint.

107. Walmart denies the allegations in Paragraph 107 of the Complaint.

108. Walmart denies the allegations in Paragraph 108 of the Complaint.

16 109. In response to Paragraph 109 of the Complaint, Walmart incorporates each and every admission, objection, allegation, and/or denial as set forth in Paragraphs 1 through 108 of this Revised Answer.

110. Walmart denies the allegations in Paragraph 110 of the Complaint.

111. Walmart denies the allegations in Paragraph 111 of the Complaint.

112. Walmart denies the allegations in Paragraph 112 of the Complaint.

113. In response to Paragraph 113 of the Complaint, Walmart admits that the County

Planning Commission has not required Walmart to submit the proposed development for "review

and approval pursuant to the Subdivision Regulations," affirmatively avers that the term

"Proposed Development" does not accurately describe the proposed development of property

owned by Walmart, and otherwise denies the allegations in Paragraph 113 of the Complaint.

114. In response to Paragraph 114 of the Complaint, Walmart admits that the County

Engineer has not required Walmart to submit the proposed development for "review and

approval pursuant to the Subdivision Regulations," affirmatively avers that the term "Proposed

Development" does not accurately describe the proposed development of property owned by

Walmart, and otherwise denies the allegations in Paragraph 114 of the Complaint.

115. In response to Paragraph 115 of the Complaint, Wahnart admits that the County

Executive has not required Walmart to submit the proposed development for "review and

approval pursuant to the Subdivision Regulations," affirmatively avers that the term "Proposed

Development" does not accurately describe the proposed development of property owned by

Walmart, and otherwise denies the allegations in Paragraph 115 of the Complaint.

116. Walmart denies the allegations in Paragraph 116 of the Complaint.

117. Walmart denies the allegations in Paragraph 117 of the Complaint.

-17- 118. Walmart denies the allegations in Paragraph 118 of the Complaint.

119. In response to Paragraph 109 of the Complaint, Walmart incorporates each and

every admission, objection, allegation, and/or denial as set forth in Paragraphs 1 through 118 of this Revised Answer.

120. Walmart denies the allegations in Paragraph 120 of the Complaint.

121. Walmart denies the allegations in Paragraph 121 of the Complaint.

122. Walmart denies the allegations in Paragraph 122 of the Complaint.

123. Walmart denies the allegations in Paragraph 123 of the Complaint.

AFFIRMAIINT, IIEFEl^^I±

First Affirmative Defense

The Complaint fails to states a claim upon which relief can be granted.

Second.Affirmative Defense

This Court lacks jurisdiction of the subject matter of the Complaint.

Third. Affirmative Defense

Relators have failed to join necessary and indispensable parties to this litigation under

Civil Rules 19 and/or 19.1.

Fourth Affir°ma.tive I3efense

Relators' claims are barred andlor limited by operation of the doctrines of res judicata,

claim preclusion, estoppel by judgment, collateral estoppel, issue preclusion, andlor because they

are at issue in a prior pending court action.

-18- Fifth Affirmative Defense

Walmart reserve s the right to amend their Revised Answer to the Complaint, and to add, modify, or delete its additional and fiu-tkher defenses as future circumstances may warrant.

WHEREFORE, having fully answered, Walmart prays that this Court:

(a) Dismiss the Complaint;

(b) Enter judgment in favor of Walmart;

(d) Award all such other relief as this Court deems just and appropriate.

19 Respectfully submitted,

Sheldon Bems #0000 140 ( o of Record) J sS unon #0072770 Paul M. Greenberger #0030736 An y R. Vacanti #0080834 Jordan Bems #0047404 Buckingham, Doolittle & Burroughs, LLP Timothy J. Duff #0046764 3800 Embassy Parkway, Suite 300 Berns, Ockner & Greenbergcr, LLC Akron, Ohio 44333 3733 Park East Drive, Suite 200 Phone: (330) 258-6502 Beachwood, Ohio 44122 Fax: (330) 252-5502 Phone: (216) 831-8838 j slagtern,bdblaw. com Fax: (216) 464-4489 i [email protected] [email protected] avacanti(a)bdblaw.com uaxeenbergex@bernso ckner. com [email protected] Attorneys for Proposed Intervening tduff(^a,b ernso ckner. com Respondent Wal-MartReal Estate Business Trust Attorneysfor Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

Thomas M. Tepe, Jr. #0091313 V Amber Justice-Manning #0082301 Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 Phone: (513) 639-3947 Fax: (513) 579-6457 [email protected] ai ustice-manning@,kmklaw. co m

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

- 20 - CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Revised Answer to Complaint in Mandamus of Proposed Intervening Respondent Wa1-Mart Real Estate Business Trust Correcting Exhibits "D" and "G" by Adding Inadvertently Omitted Pages has been sent by Regular U.S. Mail to the following this 29th day of August 2013:

Mark Wallach, Esq. Brian Heskamp, Esq. Thacker Martinsek LPA 2330 One Cleveland Center 1375 East 9th Street Cleveland, OH 44114

Attorn eys for Relators West Market Plaza Limited Partnership and Montrose Retail Associates Limited Partn ersh ip

Marvin D. Evans, Esq. Assistant Prosecuting Attorney 53 University Avenue, 6th Floor Akron, Ohio 44308

the ttorhejwr^'roposed Intervening de Wal-Mart Real Estate Business Trust

-21- Ir

Ex i 1t A `.I

G^RT^C^i.`'IDI^T QF i^KCQ^D ^w

I, Edward Glupp er'i1, hereby state that i am employed by the County of Suunrjit, Ohi.o, and iny job title- is Hu.man It.esouxce Anatqst. Iu my eIn.ployzuent capaoitsr I anx the custodian of records r-nr dw Summit County Departmeilt of lIuman kesnuxcm I hereby catify that the forsgaing "Resignal:ion" Ietter frorn Robert Henwood is a-Uue and acomte copy of t,ho official persona1 records from the file a Robert Hen.,wood which are niainfained by Sumrnit county.

Edimd G1upP Date i.

April 23, 2012

Mr.-Russei! M. Pry, Lxec>.itive Cowtty of Surnmit rn 175 South Main Sx. Q =^ F" 0 Akrou, Clliio 4430$ 02

Sul^,^cct. Resignation ':? ^

Dear Mr. Ary.

I would like to int'Qun you that I am msigning frofn tn{ position as Land l]evelopi-neilt Acimitnistrator, afI'ectivoe May 25,2012.

Than€s you far the opportunities for piofessional and 13crsonal development thot lyave been Isrovidcd rne cfuring the last five years. I haVC enjoyed niy time serving the peotala of Summit County and appreciate the supporl peovlded nie ciuriiig my tenure vvith #he depar[ment.

if I cttn be of any assistanae during this transitian, -please let nia know.

4t1n4Aw7( wvod Land Det+elopnieltt Administrator Sutrnnit County ©epaxtrnent of Comtrtunity and Bc:omn%e 13evelopmeiit

Ce. Coiu►ie ICrauss Patrictc Bravo Denni,s TZibbs l'.

Exhibit 13

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► ^ ^^ dF^en E^acuros ^ H$C} rmvollaa Exhibit C CERTIFICATI^N OF RECOBD

1, Rene Dorawlc, hereby state that I am empioyed by tho County of Sutnmi#, Qhio, and my job title is Administrcative Sccretary. In my einployment capacity I am the custodiali of records for the Surnmit County Depa-rirnont of Goxnlalu-nity and Economic Development, PianninglCa^IS Division. I hereby cei^.^ify that the foreg;oiag i4RothrocL Road Wabmrt/Sam's Club Site" is a t;=, a.nd accurate copy of the official records maintained 'by o-ur Office aad this ci.vcumcd was authored by Robert Flcnwood. Ifoaer cerfify that I choGlccd. and reviewed our computer server in reference to this document and that our computer servcr is maintained in the regular course of our Departmciat's official duties. Our computer scrver show that this document was cros.tod on November 24, 20I0, by Robeit I3cnwflod and modified only anae, also oxi Novembcr 24, 201 0, also by Robert Hcnwood,

911d- / /A o 13

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Thc Qm-dioaWa seWon of ft (]lio Ro'vked Codo (0=) (§ 711.O010)(2)) tleiines a âL^Îv1ai^. aa #Î^vu^ Thg ist^rrrvcmmut qf orw nr maoe par+celff of 1md for tas19krrllaf, cammereful, or ar' aRuaarioa. atIarrd ^c^^Fr i^d tgtr uatrr's.fi dr geoW o, f'str{aa►ura inwft+ing !he aftW^tcu€ fpr the Openb2, wlderttng, w• axa'etaton qf'ra^y p+dilir or IrrAVtS -ttiêdt va' ar ftWolvlm tlm dlvPsion or rtllaaWan of larrd 0 opara Vaces faF' OvMaA rr,ra by oxmaf s, armparrts, or leasehofckm ar, as arrsemermrfnr tlte axlodota and marntcvxrrrce o1prrb0e or pr#utrte setiver; ua►w, storm drairragQ, oal ndtell § 114103(a)(96) of the 2010 Stvnmit CaanV Snbcffvisian ticgEikaions (RekWafinm) dofaws ELMejorSubdiaigon ns foltows: Atd a"viAan rmt cIaxsIred cu a Atfinor ,Mrltvtstnr:, {trcluffln,g but nvd lhnikd !a MAPU#otrs of rnv,-e t7un flve 1olsr atry ow ojiohbaPr- is less thog,f'rvo acres, ar aq ytm &bdtukIan reqrrtrire& 4raatiorr, widanlrag or ext$n8kvt of n street or aecess aaxanzvrrl at reWng M+r dhPisfon rrr allocatiare of luird a& a xiftfi#,v ar ,dminrege vammt or a^c^r^'^gplatted îfrrr^t^ r^âte rtrîti^rtrtrl ^n^lcfr^rgdotst ?rs a reerr^Ceaîclivtaârr, ftvlous p1mvg far itle sb p>r^viclea to tha County WMoA Re1^..G'.' Ewa^ î^^PlauPs±alîngly Plart' Iîgiwrx, AbitelE, LLC. flon sot lItcludes 10 slredst SPMI.0, ALTA abeaft I to 3, SP-3.0 to 3.2, sP=4.0 to 6A 'itlee€ SP-1.0 datod 6I11201 % ,AI,TA a1Ne1s 1to 3dateEi 10i21200$, atxd SIoatu 8P-3.0 to OA dute[1 4119/2010) Shpw tlta ontite a'8rtt1 xa&c; iitcluduig tlbo rx#didon ofpropaseci trtmbgldewhxatiQg Ianm asaaakded vft #iv ftoc ddve auh-anqw, gmtsitiod wiNtL thv mdKingstmat 4li^-cf-way (ROW) ol Rcaftwlc Ro4 AWitinnal ROV is not slowrr to scaonmo&* 15e pwpesel turEring/d4eoImrrtia#t, lanes amaGiattA wi tlx tbo z1riv8 entrarzoem . . ,; .. . .. ^ .

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^'• tTuweotr, 4n ft most mce"t P,1a5 see pLtvided t4 the County fax i'ha site (i'aim."' ►y tcs. Vâo^^, ^ngln^^r^ Plan a^ inoluclea Âmela: CODII, t.^^ ttîf Cos► t^0 ^c 201; C3O0 b^ :30I, C400 & 401, C500 &501, Shwt CV00, uftlateri sa# i;.lmets ,; . C200 to C541 daW 10118010) tdditiand lsrid daems qpear to ê iMoanled i#w stYM RM In tl3is nc:wer }Un, sl#lgmgh iiwd of flte rasd sudko is oonCaimed within tlto exlsitiag Rotluoak R.aad R4W, ^rflam df tha exNanded ôod =Tace i,i thc a ►ega af-ft- uw fumiWdeceluatim Imes Mpear to eoitd bayond.tM exlst3ng ROW. pro},msed t► (.v^^mmtSi L. Thr, proluftes Ifstid ikbwe wia ftwfte cc Rothrmk Roact vxinatl to #lx ftCl'faffllkB 0'rvaldT4g. 2. If t'he niast mcAt Oces (wftvrxxcl Aove) far ft oite retiesst the pm.lxerty CAunaxO' 'pOA"ad cmfiatWan of ft sits, thq wonl^ MM to a11omrte aw sti*ivFdc scldi#ivual lus3d ta anacsmlmdatp, tire dPicta naw tuxdiigfdeoeferalinn lasw ond tlie sssoaiat!ed ROW, 'i'his actiott amEd ivquiae Ilta prapoul hs revieftd by tSua SCPC us a MA3oY SuWMelant consia6ant vAtlt Oi.tC 71 1.t}Ot(M) ittid 8ubcll,stWon Regitlattona I 1102 O3(s)(9G), 3, If 91e ptOlGAy OVpt7«IS tsast 0031flgul'9 ffiO $1tO I0 sllGh 0 YAay 0 tn unt ralÛka adclitiQudIand Gs allocatod :€br RDW, the :6allowft my, bo lef&an.l: 13oft tiie OItC ats€l fh6 Rqguintiw sp^k in the divisiott ou dlcesEiono,f land "as ensenaantti ih- rdie atoouion =d mniuEtrongnoe of pUblia or priveto uogdw," b. Prrnisian of mcntmbi fbi utilltles vo tixe aW i;òr storrovus.ter, sewu, wit#es', trttl oM ttilities wi{i #% mequir+ed, Iu^v^z C. Si^ff ^& tmtc^vaRO o£$imilee cur^=' 5^$d lsent p-njects rlEnt hsmstdWe^t 1n SCLsC: xvteâa ns s ^ju

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^. 18^^sg^l Exhibit D IFICATION DF DOCUMEN`t'S r, Matt Springet' hc.reby certify that:

1. I aiu the Plaiuliug Director for Copley Tawilship, 41uo.

2. I1-4 the scope atxd ccurse of my duties, on 7une 28, 2013, I received a let#er fiom Daii Kuester, of Woolpert, Inc., dated 7une 26, 2013, submittinl; revised site plans for tlie Proposed Development of a Walmart Sttpercenter and. Sam°s Club with Fuel Station on Roftock Road (collectively, the "Devello nlen "), a true and accurate copy oI'wliielt is attached as Exlaibit A.

I-n the scope and course of my duties, on duno 28, 2013, Ireeeived a letter froin Dan KII.ester, of Woolpett, Inc., dat.ed Tune 26, 2013, responditig to coinrnents subznittcd by tlxe Sumtnit Couaty Departmerat of Coirs:munity and Economic Development, tlie Suinmit County Planimixag I]epartinent, the Summit Catinty GIS Division Staff and the Suxrnuit County Departmezrt of Environuiantal Services, alI regarclia-ig t11e Developineiit, a true and accurate copy o f wliiclx is attached as Exhibit I3

4. In tbe scope aiid course of iny cDuties, on Jut7c 28, 2013, I i'cceivecl revised site plans for the Developnlent, s«bmitted by Dan ICuestex•, of-Wnolpert, Inc., atiue and accurate copy of which is attached as F-xliibit C, excWt for the fact that tli.c copy attaclxed as ^^l^bit C is pri.nted in S. S x 1 f inch fonnat whore the revised site plans I received were printed in ftall size format,

IN '^TiTNL^SS WHEREOF, I have ltex cunto set iny hand tl^s^y of August, 2013.

1Vlatt

Sworn bo.fore ine, aNotary Public in and for said County aiid State, at Copley, Ohio, this

21" day o.f A-Llgust, 2013. r ^ l L

^5^17YHillqi,nri eAICS:I t43173 ,1R 40S/sYl61 ^Wfjk3 uoIssfwluoagiy 01400 elvI.S'00411d d3LIdN x e Aiilnoo 41IrmrrS luBpisair J911tSI9IJ P1qN^ ^^^ ^ e 4r EXHIBIT A F ^w. ..r^egiie....r. . . 1

ke W ^ OL 74d'I^ ^ RT 0 Q0I0.17 GFOSPATihL INMAg7RUCi1IR6 c

.Iul7e 26, 2013

Matt Sprirsgerf PEamine Airecfu3. Coptay TOWsMp i mo S. CleveLand-Massillnn Road Copley, oFrto 44329 Eie: Pruppsed Develnpmnt Of a Walrnart ^^percgnter antl 5arn's Club viidi Fuel Station on Rotlttmk Road

Dear Mr. 5prlngers on behatf of V+IaI-Mast Real Estate ausiness Trust, we subrnit the e4tclosed four set5 of revLSeci sife plarls ft1T thi's dmeteprruer;t. These revised site plans adopt cornrnents recam"ted from thm SumrAt G^^nty Department of C40tnmunity Ik Evnnoynic Deverapment, lzlanning & GtS Division Stafif suggesi:ing a reduction in the nernber of parking spaces, wllich results in approximateLy eighteen feet of addttionat grean spar-e and tandscaping aLarig the tength of Rothrnck Road. `lttey alsa reflect that the deud.^pment vrllt be a comimrcial condorftnium. In addition, we enclose a rEarrait►re describing the changes macle by the revtsed Sito plans and a respaiise to comments rnade by the Summ4t County fepartmen4: af Community & Ecbnornic Develoisrrent, Plannin,g & GIS Division 5ta€f and the 5ummi# County Department of Envirenmental• 5ervices. Flnally, we enclmd a vers°ion of the reAsed overall aite plan ittustraft tandscapiiig to assist the Townshilr with its reriew. Please feel free to contact me with any questions.

Six-erety,

Wo.alpert, inc,

4(uester* Dan

dk EXHIBIT B ..... • .2 . . d...... "" ._

•^1

WOOL PE PT pEgEGti o6USPAYIAL k}lFRAYTpUCF ►Tp£

Jtme 25, 2013

Matt 5piinger Planning Director (:optey Township 1540 S. Cteve[andMas,iion Rd. Gflp[ey, OH 443Zi M. Praposed Walmart St Sarn's CtuPS i3eYeloprrtenC

k• oear' Mr. 5pflager; t TWis Letter is in tesporrse ta tQfflrn4nts suPumitted by the 5ummit Courty I?epa:trrre.nt of Cornrnurtiity arid Ec.onomie Development, Plantrirrg, and G1S 1)ivisian staff €GE]Nj and cpmments prr?vlded by the Scrrrsroit County DepartM$lit -of gnvi''onrnenta! 5er'kes

(ITIV). ks an irritial mattêr, Walrnart RoraneouslBî l^^ s^tte â âdo^^ ^ .e $it^ pla^s {Revssed Site ^lans} cî:emg .ng 5p^^. The [esser parEcft catartt result5 comments suêstirag a reduction in parisi d and Rot , as in aF evised ^^ P[ans î adad8pt[ms^y o^ taff comlrnents f'orrr ÊDPG arrd^k+t1 ► The R discussed in more detai[ betafw. The following representsr responses to tiie comments subirritted by GEDI>G Staff. piem refer to Par. 2 of 9 of the Gauntiy's responses section j. Below are oar respomes for your revjew; l Sari's Pue€ centeris set up ta be a one-way traffic f[ow thQrefore p. Tl1eninimixJng trafric caatflicts. We have carefully exatnaneci the.trafHc flmw of this areat and aitftottgh the fuet statiort Itsetf ineiy benefftwith another access poirtip would hinder traffic^tû ^^ ^^ ê overaltnv ^ a d eiito.1â fudoenteri deterYtion iras9ri and drainag required ttr malntain the drainage pattern.

A e^rls drawings. the is u^w â ôcle r Y delirêal•edb d9d not show up B. ^ Y ot► the I C. A crosswalk is propased at the south stde of the Sam's C[ub near the tire motrnting area and tt1e tinarkings have been added to the piarrs. . ^.

JtLne 26, 2013 Page 2 D. -"{^e cart corrals have bem approved by the Sam's CLub operatfans manager and are appropriate for the convenience of the stcxt's club mein4e>^Q The 4 ^• parking aisles discussecl in Ck"i]pG camments are no lor^ger Ornp li E. In order to avoid a canftict between custoaner and truck traffk, the Revised ;^^ Site Plan sltows a concrete median to separate the two trafflc pattetns Like the originaL site plan. The customers ut+Lixing the phan-nacy will head west irtito the pl-tarmacy lan$ then maFca a; u-torn to the north atnd exit with t'heir velsicles facing toward the east.

F. We have removed tlliese patlCRng spaces.

G. We have now provided roal#waY platjs to the Township.

H, we hav now addedi^cl^e' S'L'4P^ requirement at the front of he ^€akna^t and 5arn's Club crosswallcs.

I. 5ee H.

1'he fqttawing respond ta CEDPG coTmnents, starting on page 4 of 9 of their letter.

ii.A. 1'hL- landscape pian prQposed meets the ''ownsllip's requirernents. There is a walL'rangi3:g from 5' tn 15' tall with a 6 foot fence oii top along the frontage of Rothrock Road that wiUscreen ttW residential property to tiio easC. Tlio aFartrnents across the street will be 10'-20' lower in grade therefore the prAposed watt witl act as a buffer. As mentioned aborre, i resutt of Lowering the parlcitig caunts yieLds additianal greenspace and landscaping, now included along Rcthrod< Rd. he fuel itatlort wilL mclergo approval frcxm uLI appropriate governmental aii.3 T a^thortttes. iv, D. This is the same comrnent ment4ane4 In ii. irleM refer to Oar rospbnse in ii A. lOng the so€ilt ptoperty Line is iv. C'€he grading plan iadicatm the exfstlnl grade s► 5feek higheY thzAn the Sarn's Club di-lveway, sa this is a natural berm. We now sitovv installatiatt of evergreeti trees along the south side of the Sarn's Club tirive to ac_t as a buffer. v.A. Tiv,- dia-Ipster areas will be enctnsed aEnd screened. with svemreen treos along the west side vi. B. The pevised Site t'lans show a berm fmm V77. lri &ddition of the site to screen the view of the rooftop eql.riprrtent raised parapeU will also help this equipment be screened from tlle paridng lot.

900^^ [^^ 7 7636 KrEEiAc[I+lg Y1AY, SU1VE ^^^ ^^Y-CM4 _{ -

L JUTIe 26! 2013

page 3 vif1.A. ia?. `i•ypically, Walriart, atid 5am's Ctub• reqUire at LeLast a paricing ratio of 4.iy spaces per 1,000 square feet lfowever, due to the nature of thSs site and the emphasis on treen spaCe, WaUmrt and Saan's Club has reduced the parkfng ratio to 4 spaces per'L,00D square feet (I pier 250^. v1ii,8 The tighting plan w3ll lrtve cd shiclds and there wtlt he no splllaWer witA Wacertt praperties. The fak[awittg ivpresents responses to the eflmrnerlts suhmitteci I)y i=NV 5taff. - The Revised Site Plans now show instaliattnn of 1s100~gallan grease InterCeptors for art and 5arn's Club btriiding In ordel• to'assure compliance wfth both the Walri► County standards. Rubber riser rings are naw prnpcsnd for sanjtary manholes located wltltin the sidewalks and drives for the development. trust these tespnnses and plan ravisiars vrelt mect with your approval.

Sfftcerely>

Wanlpe:'t, Iinc.

ba;niet J. Kuester, PE proyeLt Mana^r

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'. ^^tT^^^^^^^^ ^^ RE, COLID

1, R^ne, DQari=Xc, hereby state t1lat I am enV1.oyed by the County of Sulmnit, Ollio, and myjob txt1e is Adnn.inistra.tive Secretaxy. In my ejUp1c)ynj.ent capacity I am fhc custodian of records for the St.imndt Gounty Department of Comnaunity and Econa"c Development, PIa-nuin.g1G15 Division. I hereby certify that the foregoing cc^l-lespcaadence dated June 21, 2014, authored by Caiimo Krauss with Herbert Newman the recipient and is a tnie and accurate copy of the o^"xcial records maintained by our Office.

r ;^^ I-k` Rcn.o Doriif€ck Date

e I.

7I lr ^^^NT^ OF SUMMIT, OHIO Russell M. )<'ry, Executive

175 5.IvWn Strect - Akroit, t7hia 44308-1308 • 330.643.2510. t-ax: 330.643-2507 •^v^r^,Y,eosummir,oh.us

71,2010

. Herb ert iVevrman ,st tVlarket Plaza l.,imitec3 ParUiqship MM•ose Retail Associates Limited Partfiership j0 West 3,d Slret^t veland. Ohio 44113

Rr: CourstY oreislaht of Pronosed Development on Ra*tock Road

Dear Mr. Newman:

This will acknowledge receipt of your correspondence dated June 17, 2010, on behaIf of the Summit County Execntive, As I arrn stcfe you a.re aware, ailn.mbor of County officeholders are independerttly clccted and have c#istinct duties and axms of anthority under the Ohio Revised Code. Tbereforc, I cannot speak on lnrhalf of ft entire County and you tnust ad(kess certa1zt €piestaons to the Office and elected ol:ficeboldet• who has nntbority over a specific niattei:

Thank you for your lottea• apprising tbe Summit County Executive of your conceFw for Montrose area development. Your Letter speaks of thc nood for the County to assume [eadersltip and coordinate iview, since tkte above referenced proposal is sa.gnif'tcamt and Iocated near tha 6oundaries of two towns]i*i.ps and one antttkicipai[ty.

Su.tnrnit Coortty rioes not have legal ftuthority to assertJttrisd}.ctltin over a proposal unless aversight is confeireci by the Ohio Revised Code and even when such autltority exists, it is eften concurrent with the review autliority of oilter govetu3nental entities including the local r,omm;tnzty.

As of the dato of this letter, tiie dcvelopers have not submitted a propasal: or an application i`nr Pla►ming Co,mrnission review, From the inateria.ls we have reviewed to date, even if this matter were to be sabmittcd for major subdivision review, the app2icatitm would be premature, Couitty Ordinance 1103.47 govems =jor aubdivisi.aia review and requires an applicant to demortstrate zoning approval prior to Prolirninaiy Plan review. It is our understandinR, that the davalopers ltave submitted a sitc plan to Copley Township} but the Township has yet to approve or disapprove tho z(ming,

Our review of the pi-oposal and discussivns with, TownslVp tends us to 6elieve tlhis proposal will require site plan approYal by the Towi-ah.ip belcore any zoning appxoval is granted. Atticla IX, Seetion 901-6 of th,a Copley Zoning Codc requires very specific Letter to Iv.ir. Herbert Newman ,1tlue 21, 2010 1'age Two

review by a number of State aud County eitti tEes beforo sucb approva[ may be given, we ai-e uncertain as to the Iength of time such a review way require. The proposal also appears to requim at least tura variances froltit the Township Zoning r,vliich would have to be appravcd by the Copley B=d op Zoning Appeals (BZA). To tlit best of our latowledgge, ttv variance i-equest has been sutrmittcd fvr BZA cansideralion.

The Co:inty will contlnue to monitor this prapasai aM intends to fulfill its statutory itnd conkractual obliptians,

Co^ic:I^-a Director, Surnmit County Dept, of Community &Econooiic Devolopment gfFice of fbe Surntnit Ccitiutyizxeclitive 175 S. Mein Street Akron, Ohio 44308 cc: RrIssell U. Piy, Summit Coutrl.y Execulive Richard E. Dobbins, Director, Summit County bepar-tment a.t'I.aw Alan Brubaker, Summit County Anginecr Summit County Caur►ci! (all meinbera) 5mmlt C'^ountyPlanning Commissiop (all members) Mark Walle.elt, Cpuszsel for West Market Pla7a and N.(w3troso .ttet-ail

2 Exhibit F

- ;: -

MRT^^^^ATIOt^ OF RECO

t• 1, Reve Dvrnaclc, hereby state that I am emplo yed by the County of E• Su.mrWt, Ohio, and rnyjab titte is A.dxrrinistrativo Secretary. In my • employment capacity I am the custodian of records fo-r the Su-n3mit County 1]epartment of Carnmunity. a-ad Economic Dewlopment, Planningl GIS Division. Ihercby certify that the foregoing correspondence dated Tuiy 28, 2010 and authored by Robert McDowall with the intended recipient being Joseph IC Pa.radiw ,. being correspondence t,ztted Proposed Walmart Development Site is a true and accuxate copy of the official recor& rnaEntained by our Office,

Waic Dornack Dato ^OUNT^ OF SU^'^MIT, OHIO RussseH M. P s F-xeciltrv*

175 S. Maiii Srecet - fikroii, Olsio 44309-I3O8.330.643.2510•fax, 330.643.2507 • VLWVY.co.stun"r.oh.us

uly2$,20E0

r. Joseph K. -Paradise, P.B. iice of the Sumrnit County Lngineer 819. Sauth Street xon, O1rio 44311-1843

Re; Proposed Wal-Mart Dev elrpment Site Rflthrodc Road, Copley Toamship, Ohio

Dear Mr. Paradise:

This wil.l aclcnowledga receipt of you ernO s.nriespandcrrca to the OfEiee of the Sumtrtit Couuty Fxecutive mlafive totlaa abovo calstioaed devertopmrmtt praposal setitoxi July 2g, 2010,

1 was iiot prtgeatt at the July 20, 2010 rneeting referenced in yau e,na.i.l but it was my un[lerstatitlhxg tbat u del"ini:tiue detemination coziecxitrrig the i-eview atathorify of tlte Suumt.it County Plem-Ang Cnnnnission (SCPC) was not reached at that time.

On dexris 17, 2010, onr t'espective Offices received a lelter from. IV.ir, Herbert Newman setting Forth 1-tis belzr^that the above-rehrenced development pmposatlleeded to be i-erriewed as a r.ufoor suladivi sion b;fnie ttrc Ca-anty Ptanning CorLUiussiolt I enalose a colry a£tliat letivr for yoiT review.

On 3une 21, 201% Counie KrRtass sent aietter in response to the ltilewman correspondence. I enclose a copy afiYls, Y-rauss's Ieit-or ft your revi.ew. Tltis letter is se.if axlslariatory and at the risk ofnvelsiraplificatriozz states that a deterrn.inafiwa of t';ourtty jurisclictinn niust await unti f Totivusbp site plan review and zonir4g canplia= issues are trs4lved betwean Coploy and the c4evetoper. Onoe those mattea•a are imsQtved, the Cntmty will review any peirding propnsa3 and det.ennine its appxopriataivyiew authority.

To the taest of rlty faaa-wledge, the TomZsliip has yet to s;on1151ete its site plan review or apprnve zoning for this projeot, Uxfil ihcse issttes ereresolvecl, any deterrnieatiaax of jrtrisdactinu is prmraturt. Alscr, the developcrs ha,re ouly subrrfitted preGaninnry plaw aad a final submittal (which xrl.ay lestue matei•ial revisions} has yet to be inacle,

We appreciate your tlrotagi]ts atid insight and look forward to reviewing this matter aficr tlta derrelopixtent Iw been approved by Cop].cy Tawnship,

^ . AMP.. ^

Let#er to Joseph X. Par•adisn xuly2S, 2010 Page Two ^• . F; Plme call the undemlgntd if ymx have my qtsestiorxs. a:

Vcr`y L-ruly youm, ^•

Raber't T. •ld1rDowall I]opartinent of Law

RTMl EmlosqlEes cc: Rus.s Ply Aiarx Dmbakm Ja.sc►nDodsrni CanmpK'mm' Sugaa 0abr=Rasu Rob H=waod Exh1 l't G

: I

^'•

c tMCAg^^^^ ^^ ^^^^RD IS

1, Rene Dornaclc, holeby si:fa.te that Z am employed by the County of Summit, Oivio, mn.d my job title is .Adnainistrative Secretary. in my employment capacity I am the custodian of records for the Summit County Department of Community autt Economic Development, PlamninglO^S Division. I hexeby callif'y that the fomgaing coxresporicieiico dateti. December 10, 2010, authored by Jason Dodsott with Mary Ann Kovach the reci.pielit is a true aittl accurate copy of the official records maintained by our Office.

P,ene Doniack Date _ .... _, ,:

^ ^^'i'-;-NTY OF S^T^^UMIT, `-)HIO Russ^^t M. Pry, E?ttiCutive

t 7] -\ Ni:t:,•I 5rrta!# • Alc3'on. ;Jbio • 330.643.25 10, ft; 339.643.7507

December 10, 2010

M. twlaryAl?n Kavacli, Esq. Gki^e^qir 11€e CiviI Di^risioai, 4ffioe [^f tl7e 5tininitt Couttty Pro.ec€€tffi,g Atloiney 53 Yl'ii[y ersity Avenue Akroti, Oliio 4430$-1680

lSfxbjeet; Rec{nest Cnr A 1<'roseaiator's ^p^ty^on bAsdictfon of County P1arening Cc€mmlasloy€ to ]trviesv Pr€,pvs*d WnR,iNn3-dSam's Club 5to►•es t€s Major Buhdivi•sion Deiay Ms. Kovach:

In a=rdauce witk the issues sct Wi in oiv n=titlg of bii Novqmbor 24, 2010. coi€oe€7iin$ dia si€nve ra£eretxed rna#ter, pluve fibid oizGlosed the follOwi€ig t^fategi^ls:

1. A oupy o£the 2a10 Sunsmit County Suiydivision Regulatirnis; 2. A copy of Ari{ole lY (Admintisteatictaa and I:'uiforae►i3ono af' the Copley Towiml3ip Zoriiug tsodo; 3. A enpy of the Set)oInent a4grm3lent in the case Rest r19ueleE Pl=, et al. if Xsc€clrma,F. S'utrin:# Cauiety floginmr, et al, Casa No. 200$-10-7231; 4. Copy of tha Site PZQn Review compieted by tho County Fiaxining fiepn€•piient purs€€aiit to CopieyZp11higRaviittion § 9014

The following carrespa€idetic e is stlso iucluded fnryour revievr;

1. Letter dated lanttary 28, 2010 fioiin Mr. Herbert Nawniav to Ni^ic Kost€rniaras; 2. C,eft dated Jttreo 17t 2010 fioirj Mr. HerbertNewmarlto Crnuue Kra€iss; 3. i.eticr dated Tune 21, 2010 rrmn Ms. Coyinio Kanss to lvh-. Herbert Nmirlw (respondrtiig to the T€ttIC 17, 20 10 ietter); 4. Esnttt4 oorrvsl5o,tid=e froin Mr, Joseph Varadiso dtLted July 29, 2010, to Ms. Cotuiie Ka-duss aonneming the Ra#ftirook Rotul development; 5. X,attor dated Jttly 28, 2010, frvni Mr. Robert McDawall to Joseph Paradise (resportc#itig to his ej-nail correspondence ofxuly28, 20 10); 6. Letter ctatcl September 17, 2010, fi-oixt Mr. Ai€tn l3i-ah;€ker, Snmmit Coutity Engillcer to nnenibqs of the Surrmtii# Cautity Plauiiing Conlmissiou; 7. M=osaudnna dated September 24, 2010, froin AttaiYizy Sboldon 13enis respondit7g to tlie above tetters i•rom the Dfru:e oftine CoLtitty Eugiileei; t..,

Mary Ann KflvwalY i;3ec=b.i!^r 7, 2614 Rqye Two

S, LetteC duteti Qctol;er 15, 2010, ]IM llle City of-Fai^lqw;'. to t}te Col*ley Township.Z.orlino Depgl:tirlorK j^.rl^ attach^ UR^ Trai:^c Study "l^xeeutive S1tiftma;'yy' altd -Sl]hlysi^ of the URS Study eortdlucWd by iVO Consulti-Ois, Ilac., dg#cd. C}ctoiaer -7, 2.010); 9 Menior.atidtun Ll.aterl U^,tober 22, 2.01 D, froi1i Wells & Assacfatts to Attarrley Tho;nas Fitzsfn3niorrs provicliiig art anAiysis a:f tiie Un- traf.f►c siudy; 10. Letter dated November 1, 2014, from Mr. Herbet# lvmmaxt to. mjtnerons COtix.ity O'lfiCiRbi; 11. E111a11 c.{li7eLppn{ltAce dftted, NoVelYSbeJ' 17i 201.0, from Atio1Tje)I S:0heo PtE!]1$. to Jitsi333 DC)dsQl2 coI1.C.f;I'olng COt1rl.ty j1ll7sdiGt.loIl of t11t: RDtlj.l°ock l2na.ci d'evelopmefit proposal; 12. Memora.utritxt of tlip 8tutin7it Coufity Plannutg Depgxfmcrrt ooncenl;rtg the luris(iiotion d f1Ya Cat3rtty Pl-axming CartymisS3oii ta -review the gotlirohd Road Piroposal.

l3^ekg^^ti^ d

In October, 2008; West Market Plaza and MoAtzose Rstail c(itrif3tenced a'l'awsuit agAinst tllo Cvttnty Flanlihig Coristiaission and CeunEy En;ilzeer for rnattdanuts blid iaajutleti've t:elief dwwdiztg tlts County conduct can-iprell^nsEve traffic-iml5aot studie,s in tlte Montrose area. iii Decci-ober; 2049; tt3a parties e:cceirtecl a settleTnea3t axeemwt (a copy of riiiCh has bven attaelaed). Itz ter-ms requzre tlle agreeiiit:nt be appt-oveil atzti adopted as an Qrdej• of the Gvuxt. `i'}tis llas not occuz-rvd aitd Qtt Septvfibet' $x 201.0, West Arlaricet: Plaztt dismissed the aeti¢n with pr6jUdide, The Levey Group f&d to vitesvene in the, litigatioxt in. January, 2010, aiiii j:equr,stcd t}lat the s*tfictnetit ttgrwnmt be set qide-. A n) otio3-t to disiniss #hat adtioxr (ta set ;isidt; the sett9emejat agrceuienQ has bwar filed by WestMprket 1'laza artd is c€ttrdrtfly pcridirlg b^fqre tbe Coutt.

Oll !wie Sa 101U, #lte Lcv.ey. Grottp' liXed- a site platt fbr revietiv' pursiiant to tlxc Copley Zoning Cotie_ An am4wded site p1au Wa.S. 5uioittcd on October 26, 2Dlqr .It ig ottr unnderaallftg tilai Tbw€ish9p Teview is aaritixluing and Captey ltas not isfted aiiy zvn3ng a1jprlorisE elelative ta thO" subrrlissions.

No appiica.tion hasbeeli sttiYm.itCed w our Subdivisiolt: Adniinisttator to put this naa.tter lrefore'tlae Stititn3it County PiaMin.g Goritaalt,issi9rt ftsrreview a5-a roajor 'Stll}davi6iptl. Hoti'vover, any appiica'dofi for sncli 'Veview is ndt usually f3ied until the Ioca1 township dete'rrr►.ita.es a praposal r,fltrijilid with .Wl^iii.- requireriictats and issues z.t}ving certifi-pa.tes. -vf p-y Anl-1 XovaL+'^ i DeCerltne: 7,. ?#310 Fa;e T;73•Ee

As yott+eaS'1 Rk fiîn tlle amlnszd r7aterGals u'd ^Yr.^sjioa1cle^tce; trie jprWEGtE4a ane, R-eview ai:athority ol:'it:e Cctwiiy Platini9tu -Cailfntissir:tx is a YotztenE oE^s t^^#tac atftaAgOie it7aAy Wities i>«vaivad w:tl3 -31t€s r3attcj^.Wv ate, tMmfore, reclvesung ait ^xin-ion ôi^ce^îri; tlze ^clE-a4t

Ia #lto ctttiem prapasai a "AiajaA sul}div?sioExrB - mtder -applic3ble law.s aazcl ordiixanees whicli reqEtires Couixty Plaltiniktg Canamissioix reviQw°?

1f dw, atiriebt pratr9sal is a`=iixajflr 5E3bdivisian' urtder n.pplicable laws what nxeclianisr,.-L exist's to coEtzpel tlla developers to submit- the tijattv far Piaoiting CatEitxaissioti rdview- atid approval7

ll`the aL2 rt•ent propasal doe& not oorxstittate .a "inajor sub0i v3sEon" -under apijL'akb1e lM, is Calanty revicw -E.it-ni.ted to ib$-approv.al jsnisriietiol of the Cotiitx.y Euildi-i1g- Deparjnxeitt as set lartkx in the State Btiadino- Cade?

We appYe.oiat^ Y401jr researclt .ai»i alxstVei s to thSe qutstiQns. If yotT have any cluqti:oixs or cciiacexJis. or ieqtlire an.y addatiortal an6ftatiatt. Please oall Bob iMc1]owall, Coinlty Law Depamteizt at.(3,30) 643-8428.

,Siiioerety^,

.l'a3an Dodsot-t CNOf Qf'Staf^ Cotitxty of Sumir.it

.7l]'1 EncXostu•es ec: REisseil'lvi. P-ry; Sttmlttit Coturty 13xecuE°iv6 t)#ftce ^^rfct .eri^lositres) olxttie. kzaass, TJirectpi', Dgpartnient of Ca3-luntuli ty atjtl Eebnvo11ic .Develop^teatt (tivfa et7c3vsx^res} Aian Bt•tibakar, Stirrtrnit Coui7ty Eitiitieer (,valo melsures) RobortT, McDowall, CountyDepartnieilt-of" La.w _.__.. i.

Mary Ann Kovacli Decceiaber7, 201© Page FQUr

Wialiamltotli, tvlnyoraft17e City of FairlawR(wlo r,nelosura$) Ldivaed Ri4er, Itsq.(w1o e»ctosure.$) Helesi FIumplirles, Tnistos (wlo onelasutes) Dale PaiwviclM, Tritstea (vvlo enclosiims) S-09tt Drossler, lYus#w (wlo e=losurds) xxvfno Si,t,arrnan, Bsq. (wlaenclosuxes) RabartI-lenwood (w/o eal 4losures) All Meiii6er n t• ftSwwiait Gburi4y PEaiining Cornr.isslon

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I, Rene Doxnaejc,1^oreby state that Ian. enp1oyed by the County of Summil, ohiv, and xnyjob title is Adnirii-stratj.va SwretaT. In my employment capacity Ian the custodian of xecords for th.e Suminit Cotxxaty Dep artn'lent of Commulity and Ecailomic Developrnont, PlannineC1IS Division. I hereby cer* t1lat the foregoing corresponclen^o dated March 3, 2011, authored by Mary Ann Kovach wiIli Jasou. Dadson the rwipient is atiue and accurate copy of tze official rew^.•ds ms.izitained by our Offico,

,A,f ' j^QX^^4,^-) r1ti2_1 le"111,3 ^^^^^ ^^^^^^^ Date SHERRI BEVA.^ WALSH Summit County Prosecuting Attarney 53 Uzriveirsity Avenue, 6th Floox Akron, Oflro 44308y1680

March 3, 2011 Prnsecutor OPi►uon Nomier i 1^059 _11+a A lt'Y' A NN KOVACII Chiaf 4'auclscl JasonDodsoil, Chiet' of Staff irount]r of Slitnmit c.TVIL ,DIYISION (330) 643^2800 115 south lViain streot (330) 643-8708 iJax .Akron, OI-ia 44308

CRIM&AL 1?XFISIt3N Uo: The >i'Iamiug +CoitimzssioB ftaa jurisdiclioa #o d!etrrnrne if a l3RA,D OESSNER svtbdivision is tnnvolved. ChiefA3clsttult MAlicA.i;tLT SCfrr'r Dear W Dndsc,n: DeputY Chief Assistsni (330) 643.278S (330Y643-8277Mx I have reviewed tbo ma#erisls You sow al.ang vvigi pour Deoambax. 10, 2010 letter reqe3est: fbr an olsinion, as nveal as o#31a doewneuts and newspaper VIcTIM SERYICRS D.C v1sro)v ariiclcs. I m amwering ynir qLmsiians regarding the Praposed derreioptnmt £pr MS'pEl"r A RAP.P Wal-MaxtlSam's Club stores in Copioy Townsh^p. Dircctor (330) 643 280(1 (330) 643-2137 Etx In fomulaLing ffim answers, itank -hatn cons4kra4lon medons ce the Sor,roit County 20I0 Widiv#sioix 1iqplaiioms and co,aapared klican tn the Ohio CaMMi1NXCiTI^NS Rovised Code Ruilc#ing Siaitfts In seGtimls 711 .01 et seq. I foond the collnty L,►vRI. r.PA)^= M.ttation to bo sfinIalt and not in oonffict wilb the sta& sistu€os. Yudeed, th,o Directnr saine iatagoago in aba.4 Ro-dsed Cocfo Saetkr171x.UDi(R) (2) appears in Sumnit (330) 643-8386 Colua^r RognWions Sectiun 110103(a) (94) (B) for lile defmition of (330) 643-2043 i;"-ax "s*divjsiona, I hava eanphosi=d, those words ar phrasos that *omld be cor sk^ed m &-tertninitg if ft develWne:tlt is a subdivision. eff1w 5VPP{?iT ► EWFDRQEMENTAC,SIVCP' iEmvIIEEi;t $IiEAm SMnmit County Sutx&ision R%vlatknxl$ in SWian 1102.03(g) (94) F}irector Sl^ht^division s[a#e in pcrEinvut pait: 17S Snu#h Mairt Street E0. Box 80598 A. 1ho division of any poreal af land shoval Akron, aH 44308-059$ as a tudt oje as (33G) 443-2765 config{tous'Ullits ... iaFto two or moro pmrls, sirtes, -Dr (330) 643-2795 Pax I-Dts... t ar

JUYMJ'X DIVISIOIV E. tb,e Itnprovenwlt of ouc or znolv. jparceis of lattd fbz 65fl Dmj $(teo residoritiai, aoromonia[ ., , struGtmw invtrlving the division Atunn, OH4¢31{i-3989 or alkxalipu of land for 111e opwing, voftteniag, or (330) 643•990 exiaenaion of Aqy s#icat rrr steeeis, ...°" (330) 379-3647 Fax

7XXDIY1'SIO,t1r 220s. Balehstre.et L Atcoml fien" Opinian 1998 - O1I *Mhua iF1et tits subdivisiun dolinitiou15 inVoMttt anj Suifa 118 eaoclades t5at flie division of Imid ittvoir+fiig now rnstls or emwe,ufs oi'aceesr,, publfo or imlvetc, 1#kmr4 OH rtri302 qqUs€ftuts a slabdiuisinn. Altbough fEte originat qnestion pvsed lnt+aiv8d ffie diivbion of paeccta (330) 643 -26i7 aantaffm'ng mote than. f.ive avm,s; iaanetheaes% tb4 SvCond put ot'tlia rief'inkion At paragtpu jg {330) 643-8540 Fix would aitvsa tiiia flpinion to ePllY arguabfy. .^.^^^ Ja-wn I]odsoa, Chicf of Staff 2 County of sunmlit Proseco.tox OpiniOn Numbcr 11 -059 1Vbtoh 3, 2011

Walrstex cieliues an R1JOcsiion as to sox apart Tor a specific pwpose or to Ex a inoatian. AISa, site is defined as a piece of land covsidcreci froox tfic sfaudpoint of i#a nw for gome specified pilrpose, .. . ihe place where something ]s...to be,

'ais s1a#inition of sita suggasts #1ial slmoe owxieesbip fs not autcomc dewftinative of whether the property is a eu.bdivision. The one owner only apnient does uatgeeessarily exempt th.e proiect frnm pimuiug coltimissxosz mview. Consirior thai most resirlential subdivisions begin their existence with 1tist one owner - tlbt^ deveioper who subseclusutly tra^fus owneTsbip piccGrnesl. Thdoed, the iuopowi sole ovnyer occupant here would be free later to truusf'm- porfions of the developmcnt to atber cammercW e.aterpri.sea.

In addition, I b"a rcviewe€t Che deflnltion of Subd'rvisian MAax hi pFUagispIx (96) of section 1IO2.03(a) uJ]ich .bzcludes: °`Adl. Subcli.viusiow nct classzzfied as a 1finax Sltbdivisioii ...requiratsg the ereaiion, widenirAg or ooeusio,a of a stmt cjr acces casement..." Sea#ian 1103,03 stWzs i1orc are two basac types of subrll^ulsions: hftor and tViajor. Otj=, sections tndir;ate in each case, the Sqanumit C;alluty P1anQing C4rnm9ssica or its Swr kall duW=ine ifft prngased sobdiviseou.srocu eny oftb.e car►ditians.

Sastion 1101.06 prnvides that subdivision lvgvIations shalL be broadliy aflnstrued aud interpreted so m to achieve their essentiiat purpaae. And, seGtaon 1101.02 (a) tbjuugh (h) provides the Pttrpnse oftbe Xgala#ions is to sectue umd provide itfr cex#ain obgeetives mcluding the proper arrangefmat of st€eets in relaiion ho exlating ar proposod st,r"ts; adequsta opeu spaces fm trac6^'io,,. ,the a-voicdaexce of congestion of the popu]adon; as well as sa.fa ^md aanvenielt vah#cntSaF and. pedestrEUU tnovamsnt and the equitabla banclliiig of a1f subdivision plats by providing m)i1bym ,proceo'lwres and sfandards fur ahsermtce by both tbc appmving authmity and 1]evel.opcr.

A#F4nUgh ib,csc regulations may iiot havc been applied co=i.stentiy im the pas^ the Plmuung Commission nwds to detsexanixie what the regutations wi11 be now aud ii the fatme.2

Snme Prdpoavxtts bel.ieve #b.o omx of the 1sstla revolves aE'ountl single awnersbip or the deiInidan fa^^ a "driveway" as opposed to tla; "parcel sfte", ar"cxraflon or widening of a sdreet", Int,exliroting the deifinifiims by oWmg a o,drrunal law case tltat narlnwiy cmngi,03 dcsfiuiiicns agahst the stafe and in favor of the defendant could iead one to beiieve this pm-ml is not a snbdlvi9ron; however these tegnla.tions ara in bc bwacily not narrowly constnW like cdmbsaE statafues. I don't Bad applicable some civil case law oited to me baemso of the Enkited acoass issues involved and narruw de#"i3itians iurroked_ Here we ha.vo 'seXviae romds'° and "qun.si

:'An Inquiry into pdx# praatices indicates &a attoh oaomurrWa! c[eve[opments, fncluding pxisting s4a=es un Roftodc Road, wa'e aot raqdrad to se* Pialming Commfsstoix appr+uval. Jascrrt Dodscn, Chjef of Staff 3 County of Sununit Pr&,=utax Opinion Number 11-059 March 3, 2D11

driveways" lauilt like roads. ,A.lthongh we have single ownersbip of the parcel whieh is izat cor,tirolling to resoive the issue, we mta also consicler faeilitatijtig ingrs.-4 and egrass to many =mbars af tbc genail public. Thase faeCs m undisj^W.

Also not in dispute is the need to connect to sevfrer, waW, and stom drainage. 'niese Wnnectioms will be within the right of way for private utility lines, S,n. State & reX. spa,zcer v. -EartLiver,pnod Planning Commiscfon, (1997) 80 Ohia St3d. 297, 685 I4.Fr2d 1251, the Suinrame Cnwt found dte conveyance of pioperty flam the part authodt-y to an crdity was not o•s

Some facts zcartai.n in dispti te or are tiat yat detexmined when discussing the s.itc cliagratu. Is axore j*attcl: needed for tiie right of way or wii[ the rFghE of way ohatige7 Yilill the existiag xvldth of Rothrnotc Road change In the xig.fit of way? Wip, the right of way be ch"edf`uiuea9ed il?om itn prcsettt poshion on the site pzan? Sasne peapla believe fhe ptoject wil! "uideu" Rflthrot& Road. Some argue lindn-eckc Road is =nly being pa:ved or up gradod wlibin the &x1sting riglit of way emd not °^vidc,ncd"; therere, iio =w alioeaFinn of land is rxecassary since lmid was prcvioersiy allocated' In• a Iettcr duted becember 14, 201p, Un has investigated tlie fusibillty of aanshmeting the actditional law for xi& tums wi&a the exiWng xigiZt-of way and opilicd it can be dozte w.fFlt tw additional road tgidening^

Others havic expttsseci concerns about fhe chaagos that will occur on C1eveland Massilan Road and SW Route 18, wxt7iob give irng=s and cgt'ess to Ro#hrook Rpad. They suggest thase potential chmges can affraA tU deteminatioa of whether tiie davelcpprnt is a"sttbdivision", The Lodi Ouget Mail was considered a subdivisioit because of ths tnad built beltind the inall for irigress aud egress.

't'ec-WCally dua to tbn pruposed w!tlening of ttothroek R,oad to pt-ovide taming lanefi into tius devalapnWt, ttoti"olcitcdd wfi be tvtder fur Enoreitan 5a96 and s[m(mt 75% of the totAi frontage vfthG projeot lo p'nuft bft, filgess and egress inbo thc ctc,velopmmzt ru#herrmWe, the Siza and Kape of the proposed devalapmCn,t wifl rArate 'tupset and pituuisng b.sues sutrstantiatlg tfle satne or greuta tLen tlmae presented by any mnjar mbdivisson pm1s+ct pravioiisiy subject to regulation under ft ordlnmo. Jason Dodon, Chlafof Staff COuI]ty of Sunuhit Prosecutor Qpiu-Aou Number A 1 -059 ,Max-oh 3, 201I

Tfus, I a.usmr as foiEows to the qetestinr,s you pose:

]. The proposal in clnegt9on cao(d be a°`major sabdivisiark" that reclu}res cmmty pRamaang review, if Itothhrook Road is a. "site", `VWned", or has an access easment withtn tk rn^Wng of section 11 02.03(a). Tho right of way on tbp site plan aIIowa lnit f ixrther paving for an additional bm tv eulat-j'T Mmck Road irk ftnt oi`the proposed commmvia1 devolopmcnr, Tlae Plnnning Comniission inay, do4ide this "widefliRg" in► no m,ore the,;, an "up graW tfud does not make this a sttbiiviaion. On thn site plaxi, I cannot dd-ennine whether the "propt ►sett right #,atn lane and taper is paxt of the existsng xi& of way or not part oi'ttie property and fts an off siru finprovement. Nlorcover, the stte plans appou to change as woxk progre.ases witlain Coploy Tou+ush#P. Uidil the sireVlan raview a.ad zoning prowss is complere with Coptcy ',Cowx,sk►ip, tir, Cauniy's ]cuisdietion cmnot be detwnimd, sirsae the I'uli 1r4p4cA of tlae devaIoio-ment v!i1. not be knornm Sufl5ao to say, tho county could havo plamtiag aufhniity oawe tlm above factual issues am resolved,

2. You ask what mechan2sm exists to compel tha diwioper to submit irs proposal for ravirw and approvaf. `i`lo answer 4fooutse is the saxae enforcement proeesges that would be a:vailable to t'he caimty if any developer of a oaajorlAw7vr s"vi4on were tosi.ra,pXy pa,'oc;eed wiule ignc ►ring the orsiinaace(sl ir# ciuastzW. Ae orrlkkame(s), 6e4 valid, a.re enPorceable tin•ougtY tbo pJannirig Conw-Assio.a and pursuit of lop[ action. Of courso, if iL suWvisian is tinfoirnced tt^ fluther mieuv is vnneemsaFy.

3. I cmilot &finxeivelt answer your quQ^itiaa abc ►ut Yimitecl review when a zuqivr subdivision xs moi iavoivcd, slace as I iwe stated I ^beiseve tha propased jmoject coulri constitute amajoz flabdivisi4n, both tel;Wca.lty eaxl rmder the brott&r imtem and pupase of tlw oxdiuanco. 'i1e ultmate deteFnAdettoft is for tiic Pla=iag Commission to dccide aftew all factual lmues fn.volrring the doi'i€txgans have been reso.lved.

As a mc:tieai nr#ter, if thcsn factual deftitiasal issues ttinadh ambigttous, thc plannffig oOmm'sssiar4 via thireat ofeifforcetnaat rnig2ut harre the pwwer to ncgotfate witb. ffie developer to alter t'he plans iQ suo1i awtp ftt tb-, pmties agree to a xcsohEtion tl]at avoids full: plmming revievr or ;rrreets couaty objeuWns typ€caliy raised durWg xmuubigaous County planoiing ro'vfew. Just last wreek, I rc.ftived what vpeared to be a work nrmariatizing a Memorandam of Il'nderstanding between the devetoper, Cnpky Tomship, amdtheRnginesr. ---- ^

Tason Dodson, Chiefof Staff 5 Coun-ty,otSummit Prosecutor Opiuinn Number l 1-059 Marclz 3 , 2dl; l

In reviewirig th$ many docurnents, Iwas patioularly =aarned aboia thv need for a moi'e coinprehensive trafBc study to ideaxtify whether to relocate or widen ingress and eWess for l-ntkmek Itoad from StMa llnuta 18 aWox C:levelan;d MassiDon Road. The Rsgineor aatd newspaper artxcles suggest maior iLivestmernts a-rx road isaprovornents are badly weded to -meve traffic fbroughL 11oi1trosa. Surh a stady might tlllhcr support calJlng fhI.s pfoject it mqior subd;vi,sion consistent vAth the an,lrnt of the CcLmty ordinmes to bslance #he benefits of developmmt with tlm needs of the public to avoid negative ]rnpacts of wutgalas-,d grovvtli. Thc Cfluuty ^Rng'raeor wo-oid best serve to determine ifFLnioire comprd=sive study is necessary,

Ihopa tMs opinion provicles sufflcient answers to tb-c questions you aslced. Flease oantact me if you bave, addi.tional ques#ions.

Very truly yoolm,

SAERM RIEV.A.N '9VALSH i'wsccutiug AttOiney

^ •' I^^ % . ]^+IA^ ^ A1Viwf Xo'VACH Chia€Counsei cc: SIimi.-t Devun WEtish, Prosecutitig Attomoy Ptns sell M. Piy, Exeantl.vo Coxwitl Krauss, Dire4tor, Dept of Connnurdty and Peonomlc Derrelop ►aaent Ala.n Bruba3cer, Sumzrw,it County Erigitww RobeitT. MoDowa.1, Depatment of Law William Uth, Mayc}r oft1w City ofFairlzm AtionW P-dward Riegler ]•'l:eten Umpfries, Trustee Dale Paucvich, Tmkee Soott Dwssler, Tmstee Attomey Irvmg Sugexrn-ml Robett-Renwo4d Robert Mec1€et Exhibit 2 IN THE SUPREME COURT OF OHIO

CASE NO. 13-1203

STATE EX REL. WEST MARKET PLAZA Original Action in Mandamus LIIVIITED PARTNERSHIP, et al.,

Relators,

SUNIlI3IT COUNTY PLANNING

COMMISSION, et al.,

Respondents.

REVISED MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM IN SUPPORT OF PROPOSED INTERVENING RESPONDENT WAL-MART REAL ESTATE BUSINESS TRUST CORRECTING EXHBITS "D" AND "G" TO ITS ANSWER BY ADDING INADVERTENTLY ONHTTED PAGES

Mark Wallach #0010948 Marvin D. Evans #0055616 Brian Heskamp #0083548 Assistant Prosecuting Attorney Thacker Martinsek LPA 53 University Avenue, 6th Floor 2330 One Cleveland Center Alffon, Ohio 44308 1375 East 9' Street Phone: (330) 643-2800 Cleveland, OH 44114 Fax: (330) 643-8708 Phone: (216) 456-3840 Email: [email protected] Fax: (216) 456-3850 Email: [email protected] Attorneys for Respondents Summit County bheskampna,tmlpa.com. Planning Commission, Summit County Executive, Russell M. Pry, Summit County Attorneys for Relators West Market Plaza Engineer, Alan Brubaker, Summit County Limited Partnership and Montrose Retail ChiefBuilding Official, John Labriola, and Associates Limited Partnership Summit County Department of Building Standards Sheldon Berns #0000140 (Counsel of Record) Paul M. Greenberger #0030736 Jordan Berns #0047404 Timothy J. Duff #0046764 Bern.s, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, Ohio 44122 Phone: (216) 831-8838 Fax: (216) 464-4489 [email protected] pgreenbergerkbernsockner. com 'berns bentisockner.com [email protected]

and

John Slagter #0055513 James S. Simon #0072770 Anthony R. Vacanti #0080834 Buckingham, Doolittle & Burroughs, LLP 3800 Embassy Parkway, Suite 300 A1uon, Ohio 44333 Phone: (330) 258-6502 Fax: (330) 252-5502 jslagter @bdbiaw.com 'simon bdblaw.com avacanti@,bdblaw.com

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

-2- MOTION FC}R. JUDGMENT ON THE PLEADINGS

Proposed Intervening Respondent Wal-Mart Real Estate Business Trust ("Walmart") moves for judgment on the pleadings under S.Ct.Prac.R. 12.04(B)(1) and Civil Rule 12(C) for the reasons set forth in the memorandum in support below.

aVIEMORA..'UM IN SUPPORT

1. Preliminary Statement

Walmart owns property on Rothrock Road in Copley Township that it plans to develop for a Walmart store and a Sam's Club store. Relators, State ex rel. West Market Plaza Limited

Partnership and Montrose Retail Associates Limited Partnership, contend that Walmart's project constitutes a subdivision under the Summit County Subdivision Regulations. Walmart's project, however, does not constitute a subdivision and, in any event, it is premature to make such a determination.

In this original action, Relators ask the Court to compel Respondents, the Summit County

Executive, the Summit County Engineer, and the Summit County Planning Commission, to: (1) force Walmart to submit an application for subdivision review for its project and; (2) to prevent

Walmart from constructing its project until it receives the approvals required for subdivisions.

Relators also ask this Court for "ancillary temporary injunctive relief' pending resolution of their action by enjoining the County Executive, the County Engineer, and the County Planning

Commission, along with Respondents the Summit County Chief Building Official and Summ.it

County Department of Building Standards from granting Walmart any zoning certificates,1

'Relators' reference to zoning certificates is perplexing because none of the respondents issue zoning certificates, only township zoning inspectors can do so, and Relators did not name Copley Township's Zoning Inspector as a respondent. ..I... building permits, or other such certificates or permits that would allow Walmart to construct its project before subdivision review.

As an initial matter, the Court should dismiss Relators' Complaint for lack of jurisdiction because their true object is a declaratory judgment and a prohibitory injunction, not a writ of mandamus. Relators are improperly seeking a declaratory judgment from this Court fmding that

Walmart's project constitutes a subdivision under Summit County's Subdivision Regulations. In addition, Relators are improperly seeking a prohibitory injunction preventing Walmart from constructing its project until it submits an application for subdivision review and receives the approvals required for subdivisions.

In addition to the lack of jurisdiction, however, Relators' Complaint should also be dismissed because they cannot establish that the County Executive, the County Engineer, or the

County Planning Commission have a clear legal duty to force a property owner to seek subdivision review. In fact, they cannot even identify any provision of the Summit County

Subdivision Regulations giving these respondents the authority to do so.

What is more, Relators will never be able to establish that Walmart's project is a subdivision for the simple reason that, as Walmart's Answer2 establishes, Walmart submitted revised site plans to Copley Township on June 28, 2013, designating its project a commercial condominium, which, of course, means that it is excluded from consideration as a subdivision under R.C. 5311.02.

Further, even setting aside this statutory exclusion, Relators cannot, as a matter of law, establish that Walmart's project is clearly a subdivision and instead resort to a series of

ZAlI references to Walmart's Answer are to its Revised Answer to Complaint in Mandamus Correcting Exhibits "D" and "G" By Adding Inadvertently Ornitted Pages. -2- misstatements to support their inaccurate assertion that Wal.mart's project "unambiguously" meets the definition of a major subdivision. For example:

• Alleging on "information and belief' that Robert Henwood is the County's Subdivision Administrator and alleging that he wrote a memorandum on June 26, 2013 (the "Henwood Memorandum") concluding that Walmart's project is a condominium even though Mr. Henwood left his employment with Summit County on May 25, 2012.

• Alleging that the Henwood Memorandum concludes that Walmart's project constitutes a subdivision even though the Memorandum was clearly not referring to the most recently submitted (and revised) plans, and instead referred to outdated plans. Indeed, the Memorandum (1) refers to plans dated October 18, 2010, as the "most recent plans," (2) lists nine parcels with owners other than Walmart, and (3) "concludes" merely that based on the October 18, 2010 plans, the development of Walmart's property might constitute a subdivision.

• Asserting that County officials have ignored Relators' demands that the County take action when the County officials responded to, Relators' demands and sought a legal opinion from the County Prosecutor, who determined that it was premature to determine whether the development of Walmart's property constituted a subdivision.

Finally, Relators' Complaint should be dismissed under S.Ct.Prac.R. 12.02(B)(1-2) because it is based in Iarge part on "information and belief' instead of personal knowledge, such as the inaccurate averment that Mr. Henwood is the Subdivision Administrator.

11. 411e ations arad Facts from the Com laint and Answer

Wa.lmart owns property on Rothrock Road in Copley Township that it plans to develop for a Walmart store and. Sam.'s Club store. (Compl. ¶¶ 27 & 44; see also FitzSimmons Aff., Exs.

2 & 9.) In June 2010, a prior developer, LRC Development Co., submitted an application for zoning certificate to Copley Township for the property, which is now owned by Walmart.

(Compl. ¶ 3 8.) The prior developer later withdrew the application for zoning certificate. (Compl.

¶ 45.) In or around September 2012, Walmart completed its purchase of the property, and, in

March 2013, Walmart submitted a new zoning application to Copley Township. (Compl. ¶¶ 44-

3 45.) Relators acknowledge, however, that Copley Township has not yet issued a zoning certificate.3 (FitzSimmons Aff. ¶ 24.)

According to Thomas FitzSimmons, Relators' General Counsel, on whose improper affidavit Relators rely, Walmart's project is a Major Subdivision under the Summit County

Subdivision Regulations because it supposedly: (1) involves the construction of a group of commercial structures across six or more parcels of land and involves at least one parcel that is less than five acres; (2) involves the allocation of land for the widening of a street; (3) allocates or will allocate land as an easement for the extension and maintenance of a public sewer, water, and storrn drainage; and (4) allocates land as open spaces for common use by owners, occupants, or lease holders. (Compl. ¶¶ 30-36.)

Relators go on to allege, "on information and belief," that Robert Henwood is Sununit

County's Subdivision Administrator. (Compl. ¶ 50.) Relators then assert that Mr. Henwood authored the Henwood Memorandum on June 26, 2013, and that memorandum concludes that

Walmart's project is a subdivision. (Compl. ¶¶ 50 & 54.) Relators also assert that the Summit

County Engineer has concluded that Walmart's project is a subdivision based on a letter he wrote

3Relator's make several misstatements concerning Copley Township's zoning-certificate process. For example, Relators inaccurately state that the County Planning Commission reviews plans and the County Engineer approves plans submitted with an application for a zoning certificate. (Compl. ¶ 39 & 46.) Under Article 13.0l.F.4.a of Copley Township's Zoning Resolution, the Summit County Department of Planning and Economic Development not the County Planning Commission-reviews applications. See Copley Township Zoning Resolution, Art. 13.0l.F.4.a ("After review and recommendation of the Summit County Department of Planning and Economic Development and/or the Township's consultant that the plans adequately provide for . . . ."). And both the Summit County Department of Planning and Economic Development and the County Engineer review applications and make recommendations-they do not "approve plans" on behalf of the township. See Copley Township Zoning Resolution, Art. 13.0l.F.4.a & c, attached as Exhibit 1. For an example of such a review and recommendation, see the comments from the Community & Economic Development, Planning & GIS Division that Relators attach as Exhibit 11 to Mr. FitzSimmons's affidavit.

-4- dated September 17, 2010, and his deposition testimony in a lawsuit that is pending before the

Summit County Court of Common Pleas. (Compl. ¶¶ 41 & 43.)

Relators also allege that they have "repeatedly demanded" that the County Executive,

County Engineer, and County Planning Commission "subject the Proposed Development"-to the requirements of the Subdivision Regulations, including numerous letters sent by one of their principals, Herbert Newman. (Compl. ¶ 89.)

Finally, Relators allege that on July 19, 2013, "one end of Rothrock Road" was closed to through traffic. (Compl. ¶ 84.)

Walmart's Answer establishes that Mr. Henwood left his employment with Summit

County on May 25, 2012, and, as a result, he could not have prepared the Henwood

Memorandum on June 26, 2013. (Walmart's A.nswer, ¶ 50, and Exs. A & B.) Indeed, Walmart's

Answer shows that this memorandum was actually prepared on November 4, 2010. (Walmart's

Answer, ¶ 54 and Ex. .) Walmart's Answer also establishes that it submitted revised plans to

Copley Township on June 28, 2013, which, among other things, desigrnates the project a commercial condominium. (Walmart's Answer, ¶ 54 and Ex. C.) Walmart's Answer further establishes that the of City of Fairlawn has closed the portion of Rothrock Road lying on the border of its territory, making the portion of Rothrock Road along Walmart's property a long cul de sac and, in the event that Rothrock Road remains closed, which is the subject of additional lawsuits that are currently on appeal in the Ninth District Court of Appeals,4 making many of the improvements proposed on Walmart's plans no longer necessary (or in some instances no longer

4These appeals are known as Copley Township v. City of Fairlawn, et al., Ninth District No. CA- 27010, State ex rel. Pollocl; et al. v. City of Fairlawn, et al., Ninth District No. CA-27012, and State ex rel. Pollock et al. v. City of Fairlawn, et al., Ninth District No. CA-27040. -5- even permitted as is the case with the traffic light in front of the entrance to the stores that will now no longer be warranted). (Walmart's Answer, ¶ 84.)

Walmart's Answer also establishes that the County responded to Mr. Newman's letters.

In a letter dated June 21, 2010, responding to Mr. Newman's letter dated June 17, 2010, Connie

Krauss, Director of the Summit County Department of Community & Economic Development, informed Mr. Newman that no proposal or application for Planning Commission review had been submitted and that, in any event, an application would be premature because Copley

Township had not yet issued a zoning certificate. (Walmart's Answer, ¶ 89 and Ex. E.) In a letter dated July 28, 2010, from Robert McDowall, an attorney in the County Executive's law department, to an assistant county engineer, discussed Mr. Newman's June 17, 2010 letter and

Ms. Krauss's June 21, 2010 letter and emphasized that until Copley Township issued a zoning certificate any determination about whether the development of Walmart's property constituted a subdivision would be premature. '(Walrnart's Answer, ¶ 89 and Ex. F.) In a letter dated

December 10, 2010, Jason Dodson, the County Executive's Cbi.ef of Staff, referencing a large amount of enclosed material, asked the County Prosecutor for a legal opinion concerning whether the development of Walmart's property constituted a subdivision. (Walmart's Answer,

¶ 89 and Ex. G.) And, in Prosecutor Opinion Number 11-059, dated March 3, 2011, the County

Prosecutor found that insufficient information existed to make a determination. (Answer, ¶ 89,

Ex. H.)

IH. Law-an. _°gument

A. Le^al Standa.rd.

A motion for judgment on the pleadings has been characterized as a belated Civil Rule

12(B)(6) motion. State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978

-6- N.E.2d 188, ¶ 14. Significant differences, however, exist between the two motions. Most importantly, while under Civ. R. 12(C), a court still "construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true," the court considers both the complaint and the answer. State ex rel. Midwest Pride IV,

Inc. v. Pontious, 75 Ohio St.3d 565, 569, 1996-Ohio-459, 664 N.E.2d 459. In other words, as one court recently found, an answer may add information not included in a complaint that results in a determination that the defendant is entitled to judgment even when the allegations of the complaint are construed in favor of the plaintiff. Internatl. Union of Operating Engineers, Local

18 v. CNR Trucking Inc., 8th Dist. No. 98935, 2013-Ohio-2094, ¶ 19 (fmding that where complaint failed to mention competing collective-bargaining agreements, the trial court could consider averments in the answer, as well as the answer's attachments, that competing collective- bargaining agreements existed). Thus, when a court considers a motion for judgment on the pleadings, it may consider facts establishcd in an answer so long as the court continues to construe the material allegations in the complaint, with all reasonable inferences to be drawn from them, as true.

In considering the complaint and the answer, the court also considers their attachments.

See, e.g., Inskeep v. Western Reserve Transit Auth., 7th Dist. No. 12-MA-72, 2013-Ohio-897, ¶ 2

(noting that when considering a motion for judgment on the pleadings the court "can only consider the complaint, the answer, and any documents attached to the complaint or the answer"); Schmitt v. Educ. Service Center of Cuyahoga Cty., 8th Dist. No. 97623, 2012-Ohio-

2210, ¶ 15 (noting that a"determination on a Civ.R. 12(C) motion is limited `solely to the allegations in the pleadings and any writing attached to those pleadings"); O'Neill v. Village of

Tremont, 2nd Dist. No. 08-CA-66, 2009-Ohio-3768. ¶ 26 (noting that when considering a motion

- 7 , for judgrnent on the pleadings, the court's inquiry is "restricted to the material allegations in the pleadings and any attachments thereto"). In addition, "[o]nly well-pleaded facts rnust be taken as true, not legal conclusions or unwarranted factual inferences." Jones v. Lucas Cty. Sheriff `s

Med Dept., 6th Dist. No. L-11-1196, 2012-Ohio-1398, ¶ 12. Finally, while Relators may be entitled to have well-pled allegations of their Complaint construed in their favor, they are not entitled to have allegations that are founded solely on an affiant's information and belief construed in their favor-at least not with a complaint seeking the extraordinary relief of a writ of mandamus from this Court.

B. This Court Lacks Original Jurisdiction [Svcr Relators' Claims Because Their True Object Is a Declaratory Judgment and Prohibitory Injunction-Not a Writ of Mandamus.

This Court lacks original jurisdiction to grant either declaratory judgments or prohibitory injunctions. See, e.g., State ex rel. JobsOhio v. Goodman, 133 Ohio St.3d 297, 2012-Ohio-4425,

978 N.E.2d 153, ¶ 14 (determining that "neither this court nor the court of appeals has original jurisdiction over claims for declaratory judgment"); State ex rel. Crabtree v. Franklin Cly. Bd of

Health, 77 Ohio St.3d 247, 248, 1997-Ohio-274, 673 N.E.2d 1281 ("Neither this court nor a court of appeals has original jurisdiction in prohibitory injunction."). As a consequence, the

Court examines the substance of the allegations of a complaint in mandamus to determine whether the relator's true object is a declaratory judgment or prohibitory injunction: "It is axiomatic that `if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint docs not state a cause of action in mandamus and must be dismissed for want of jurisdiction."' State ex rel. Obojski v. Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d 1070, ¶ 13, quoting

State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999). Or, as the

-8- Court held in State ex rel. Pressley v. Industrial Comm., 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph four of the syllabus (196 7):

Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, such a petition does not state a cause of action in mandamus and since neither the Supreme Court nor the Court of Appeals has original jurisdiction in injunction the action must be dismissed for want of jurisdiction.

Thus, even when relators couch their complaint in terms of mandamus, the Court will dismiss the action for lack of jurisdiction where the relators' true object is declaratory relief, prohibitory injunction, or both.

An examination of Relators' allegations reveals that while they couch their Complaint in terms of mandamus, their true object is a declaratory judgment that Walmart's project constitutes a subdivision, as well as an injunction preventing Walmart from constructing its project until it submits an application for subdivision review and obtains approvals required for subdivisions.

While Relators acknowledge that Copley Township has not even issued a zoning certificate for

Walmart's project, a prerequisite for the existence of a final site plan, which is itself a prerequisite for determining whether a project constitutes a subdivision, much of Relators'

Complaint consists of allegations trying to establish that Walmart's project constitutes a subdivision. Relators then assert that they are entitled to a writ of mandamus compelling the

County Executive, the County Engineer, and the County Planning Commission:

,. 9 - (Compi. 1117.) Relators go on to allege that they are entitled to a writ of mandamus compelling the County Executive, the County Engineer, and the County Planning Commission "to assert jurisdiction over the Proposed Development pursuant to the Subdivision Regulations." (Compl.

¶ 118). With respect to their Count One, Relators demand:

That a writ of mandamus be issued on Count One, to order the County Planning Commission, the County Engineer, and the County Executive to direct the Developers (currently, Wal-Mart) to submit the Proposed Development for review and approval pursuant to the Subdivision Regulations before the Proposed Development can be built ....

(Compl., page 20.)

That Relators' true object is a declaratory judgment and prohibitory injunction is further demonstrated by their claim for "ancillary temporary injunctive relief," in which they ask this

Court to enjoin the County Building Official and Department of Building Standards from

"altering the status quo by taking any action with respect to the Proposed Development that is inconsistent with the relief requested by Relators herein, including, but not limited to, issuing permits or otherwise authorizing the construction of the Proposed Development prior to or outside of the review of the Proposed Development required by the Subdivision Regulations pending this Court's determination of the merits of this Petition," as well as asking the Court to enjoin the County Executive, the County Engineer, and the County Planning Commission from

"[a]ltering the status quo by taking any action with respect to the Proposed Development that is inconsistent with the relief requested by Relators herein, including, but not limited to, issuing permits, certificates, recommendations, or approvals relating to the Proposed Development, or by authorizing in any way,the construction of the Proposed Development prior to or outside of the review of the Proposed Development required by the Subdivision Regulation pending this

10 Court's determination of the merits of this Petition." (Comp1. ¶¶ 121-122.) And, as for Count

Two, Relators demand an injunction:

[P]rohibiting the Respondents f"rom granting any zoning certificates,5 building permits, or other such certificates or permits that would allow the Proposed Development to be constructed prior to a review of the Proposed Development pursuant to the Subdivision Regulations, pending the Court's determination of the merits of the Petition.

(Compl., pages 20-21.)

Thus, the substance of Relators' allegations demonstrate that they are seeking the exact type of relief that the Court has held does not state a cause of action in mandamus.

Consequently, the Court has no jurisdiction over this action and therefore it must be dismissed.

C. Relators' Complaint Should be Dismissed Because as a Matter of Law They Cannot Establish That Respondents Have a Clear Legal Duty to Perform the Requested Rellefa

To be entitled to a writ of mandamus, a party must establish, among other things, a clear legal duty on the part of the respondents to perform the requested relief. State ex ret. Am. Civ.

Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-

625, 943 N.E.2d 553, ¶ 22. Here, Relators cannot establish that the County Executive, the

County Engineer, or the County Planning Commission have a clear legal duty to force Walmart to submit an application for subdivision review. In fact, they simply have no authority to force a property owner to seek subdivision review, let alone a clear legal duty to do so. And, even if they did, Relators cannot establish that Walmart's project is clearly a subdivision.

SAs noted above in the first footnote, Relators' reference to zoning certificates is perplexing because none of the respondents issue zoning certificates, only township zoning inspectors can do so, and Relators did not name Copley Township's Zoning Inspector as a respondent.

- 11 - 1. Respondents have no authority to force a property owner to seek subdivision review-let alone a clear legal duty to do so.

Relators ask this Court to compel the County Executive, the County Engineer, and the

County Planning Commission to force a property owner to seek subdivision review. This is not something that any of these respondents even have any authority to do. As a matter of law, therefore, no writ of mandamus requiring them to do so can be issued.

Relators first point to Section 1111.01 of the Subdivision Regulations,6 which provides:

The Summit County Planning Commission and its Staff, County Executive, Summit County Engineer and Department of Environmental Services shall administer these Regulations jointly as specified herein, except where specific authority is given to another County office as set forth in these Regulations.

It is well established that a writ of mandamus will not issue to "compel the observance of laws generally.°" State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207, paragraph seven of the syllabus (1946) ("A writ of mandamus will not issue to compel the observance of law generally, but will be confined to commanding the performance of specific acts specially enjoined by law to be performed."). And Section 1111.01's general provisions fall far short of providing anyone with the authority-much less a clear legal duty-to do anything.

Relators also improperly conclude that the provisions of Chapter 1103 of the Subdivision

Regulations, which specifies procedures to be followed for the subdivision of land, provide the

County Planning Commission with a clear legal duty to force Walmart to file an application for subdivision review. Section 1103.03 describes the two types of subdivisions-minor and major-and provides that the "Summit County Planning Commission or its Staff shall determine that a proposed subdivision of land" is a minor or a major subdivision. Section 1103.03(a) and

(b). Section 1103.07 then provides that "Major Subdivisions "shall be approved in four (4)

6The Summit County Subdivision Regulations (without appendices) are attached as Exhibit 2. -12- stages: Concept Plan Stage, Preliminary Plan Stage, Improvement Plan Stage and Final Plat

Stage" and that, with respect to the submission of a concept plan, "[t]he Developer shall make application to the Department of Community and Economic Development for a Concept Plan

Discussion meeting by submitting a complete Concept Plan application and related materials."

Section 1103.07(a)(1). Relators improperly ask the Court to read these provisions as creating a duty on the part of the County Planning Commission to force property owners to submit an application to the Department of Community and Economic Development for a Concept-Plan-

Discussion meeting.7

Relator's argument is flawed for several reasons. First, under the Subdivision

Regulations, the County Planning Commission's authority is limited solely to reviewing applications actually submitted for subdivision review. In the absence of such an application, the County Planning Commission has nothing to review; it simply has no authority to compel a property owner to submit an application for subdivision approval. Second, even if Relators were correct that Section 1103.03 required the "Summit County Planning Commission or its Staffl' to determine whether projects were subdivisions and to then force property owners to submit an application for subdivision review, this would not create a clear legal duty for only the County

Planning Commission because the County Planning Commission and its staff, whom Relators have not named as a respondent to this action, are distinct. The County Planning Commission is a public body. Under Section 141.01 of Summit County's Ordinances, the "County Planning

Commission, established pursuant to Ohio R.C. 713.22, shall continue to exercise the powers and duties established by general law" and "shall consist of nine (9) citizens of the County, and one

7 Even if these provisions meant what Relators say they mean, a county planning commission actually has no authority to require a concept plan review because such a requirement conflicts with the two-step process provided for in R.C. 711.10. -13- District Representative and one At-Large Representative from Summit County Council."

Section 141.01(a-b), attached as Exhibit 3. In addition, Section 1102.03 (a)(103) of the

Subdivision Regulations defines the "Summit County Planning Commission" as follows:

Summit County Planning Commission. (The Planning Commission). A legally constituted body established by Resolution No. 1453-76 adopted November 2, 1976, by the Board of Summit County Commissioners and the amendment, Resolution No. 1586-76 adopted November 23, 1976, by the Board of Summit County Commissioners, under authority of Section 713.22 of the Ohio Revised Code which conducts hearings and makes recommendations to the County Council.

The County Planning Commission's "staff," on the other hand, is defined as follows:

Staff. The Staff of the Snmmit County Department of Community and Economic Development/Summit County Planning Commission.

Section 1102.03(a)(89). Summit County's Ordinances describe the Department of Community

and Economic Development as follows:

Pursuant to Ohio R.C. 307.07, there is hereby created an Office of Economic Development, which shall be known as the Department of Community and Economic Development, under the direction of the County Executive. Effective November 1, 2012, and subject to further reorganization by the County Executive, the Departrnent of Community and Economic Development shall consist of the Division of Development, the Division of Building Standards and the Division of Planning and Geographic Information Systems.

Section 142.01, attached as Exhibit 4. An example of a report prepared by the "Staff'-Summit

County's Community & Economic Development, Planning & GIS Division, can be found at

Exhibit 11 of Mr. FitzSimmons's affidavit.

Thus, a writ of mandamus cannot lie to compel the County Planning Commission to do

an act that it has no authority to do and, even if it had the authority, that authority is provided in the alternative with others.

."14N The final provision of the Subdivision Regulations that Relators point to is Section

1111.05.8 This section, concerning penalties, provides in part that "the Summit County Planning

Commission shall refer to the County Prosecutor any alleged violation of or a lack of compliance with any provision of these Regulations." While this provision may require the County Planning

Commission to refer alleged violations or lack of compliance with the Subdivision Regulations to the County Prosecutor, the provision obviously cannot form the basis for a duty on the part of the County Planning Commission-or the County Executive or the County Engineer for that matter-to force a property owner to submit an application for subdivision review.9

In sum, as a matter of law, Relators cannot establish that the County Executive, the

County Engineer, or the County Planning Commission have any authority-let alone a clear legal duty-to force Walmart to submit an application for subdivision review (more properly an

"application to the Department of Community and Economic Development for a Concept Plan

Discussion meeting"), to "carry out the mandate of the subdivision regulations," or to "assert jurisdiction" over Walmart's project. Accordingly, Relators Complaint should be dismissed for failure to state a claim upon which relief may be granted.

$Relators overreach when they assert that another project represents the County Planning Commission's "acknowledgement of authority to require compliance with subdivision regulations." The letter that Relators attach as Exhibit 23, and the e-mail string that they attach as Exhibit 24, to Mr. FitzSimmons's affidavit show a consensus between a property owner and the County Planning Commission's staff that a project would constitute a major subdivision and would need to undergo subdivision review; these documents do not show that the County Planning Commission forced a property owner to submit to subdivision review. In any event, what matters is the authority a public body actually possesses, not the authority it might believe it possesses.

90f course, if the County Planning Commission were to make a referral to the County Prosecutor, any decision concerning prosecution would involve discretion. State ex rel. Master v. City of Cleveland, 75 Ohio St.3d 23, 27, 1996-Ohio-228, 661 N.E.2d 180 ("A prosecuting attomey will not be compelled to prosecute a complaint except when the failure to prosecute constitutes an abuse of discretion."). -15- 2. Relators, as a matter of law, cannot establish that Walmart's project is clearly a subdivision.

Finally, even if some duty actually existed, which it does not, Relators cannot demonstrate a breach of that duty because they cannot establish that Walmart's project is clearly a subdivision. Irrespective of whether the Court considers the pleadings together or looks solely to Relators' Complaint, it is readily apparent that Walmart's project cannot be a subdivision or, at most, that it is premature for anyone to make that determination. It also becomes readily apparent that neither the County Planning Commission nor the County Engineer have actually concluded that Walmart's project, or at least its current project, is a subdivision, and that even if they had, their opinions would not form the factual basis required for supporting a complaint in mandamus. And, when Relator's so-called "factual" assertions are examined in conjunction with their own attachments to the Complaint, it becomes quite evident that they are based on the

"opinions" of others-not facts, are based on outdated plans, or are simply inaccurate.

Considering the pleadings together, as the Court may do on a Civil Rule 12(C) motion,

Walmart's Answer-filling in Relators' omissions and improper allegations made on

"information and beliefl'-demonstrates that as a matter of law Relators cannot establish that

Walmart's project is clearly a subdivision. First and foremost, Walmart's Answer reveals that its project is statutorily exempt from being considered a subdivision. Walmart submitted revised plans to Copley Township on June 28, 2013, designating its project a commercial condominium.

(Walmart's Answer, ^ 54 and Ex. D.) Under R.C. 5311.02, condominiums are exempt from consideration as subdivisions:

Neither the submission of property to the provisions of this chapter, nor the conveyance or transfer of a condominium ownership interest constitutes a subdivision within the meaning of, or is subject to, Chapter 711. of the Revised Code.

-16- Walmart's project, therefore, is not, and cannot, be a subdivision.

Even setting aside this statutory exemption, the revised plans that Walmart submitted on

June 28, 2013, demonstrate that the plans dated January 7, 2013, that Relators attach as Exhibit 2 to Mr. FitzSimmons's affidavit, as well as the plans dated October 18, 2010, referenced in the

Henwood Memorandum, and, for that matter, whatever plans the County Engineer might have reviewed when he wrote his letter dated September 17, 2010, are completely out of date and of no consequence.

Walmart's Answer also demonstrates that Mr. Henwood left his employment with

Summit County on May 25, 2012. (Walmart's Answer, ¶ 50 and Exs. A & B.) Mr. Henwood, therefore, could not have written the Henwood Memorandum on June 26, 2013. Nor could Mr.

Henwood have been the "Subdivision Administrator" that Robert McDowall refers to in his email dated March 1, 2013, that Relators attach as Exhibit 15 to Mr. FitzSimmons's affidavit.

Indeed, Walmart's Answer shows that the Henwood 'Memorandum was actually written on

November 24, 2010. (Walmart's Answer, ¶ 54 and Ex. C.)

In addition, contrary to the assertions of Relators, Walmart's Answer shows that Summit

County's officials have not ignored Mr. Newman's letters. Instead they consistently found that it was premature to determine whether the project constituted a subdivision. (See Walmart's

Answer, ¶ 89 and Exs. E-H: C. Krauss letter to H. Newman, dated 6/21/10; R. McDowall letter to an assistant county engineer, dated 7/28/10; J. Dodson letter to the County Prosecutor seeking legal opinion dated 12/10/10; and Prosecutor Opinion Number 11-059, dated 3/3111).) When

Walmart's Answer is considered in conjunction with Relators' Complaint, therefore, it becomes apparent that Relators cannot establish that Walmart's project is clearly a subdivision.

17- Even setting aside Walmart's Answer and looking solely to Relators' Complaint, however, it is apparent that Relators cannot establish that Walrnart's project is a subdivision-let alone clearly a subdivision. As an initial matter, Relators acknowledge that Copley Township has never issued a zoning certificate. Absent a zoning certificate there is no final plan and without a final plan it cannot be determined whether a project constitutes a subdivision.

In addition, the assertions by Relators that the County Planning Commission and the

County Engineer have concluded that Walmart's project is a major subdivision do not hold up on examination of Relators' own attachments. Relators rely on the Henwood Memorandum to support their assertion that the Planning Commission has concluded that Walmart's project is a major subdivision. Relators, however, offer no explanation why the Henwood Memorandum, which they inform this Court Mr. Henwood wrote on June 26, 2013, refers to October 17, 2010 plans as the "most recent plans," when in fact they axe not, or why it lists multiple parcels with owners other than Walmart.

Relators also exaggerate when they assert that the Henwood Memorandum concludes that

Walmart's project is a subdivision. (Mem. in Support of Writ of Mandamus, at 13-14.) At most, the memorandum notes that the project proposed in the October 17, 2010 plans might be a major subdivision. Further, as pointed out above, Mr. Henwood (even when he was employed by the

County Executive), as a staff member, was not the same thing as the public body that is the

"Planning Commission." While Relators conclude that the Henwood Memorandum represents the conclusions of the Planning Commission, they make no factual allegations that the Planning

Commission adopted the Henwood Memorandum or, for that matter, even saw it.

As for the County Engineer, Relators rely on his letter dated September 17, 2010, and his deposition testimony. The County Engineer's letter, however, is out of date. It cannot be based

-18- on the plans dated January 7, 2013 that Relators attach as Exhibit 2 to Mr. FitzSimmons's affidavit (or, for that matter, the revised plans Walmart submitted to Copley Township on June

28, 2013). And in both his letter and during his deposition testimony, the County Engineer made clear that he was reaching an engineering opinion. He obviously cannot make a legal determination-which is required to determine whether a project is a subdivision. Indeed this is the basis of the objection made during the County Engineer's testimony. (See, Transcript

Excerpt, FitzSimmons Aff., Ex. 7.) Besides, even in the brief excerpt of the County Engineer's deposition testimony that Relators provide, the Engineer testifies that "everyone" has informed him that he is wrong. (Id.) Finally, even if the County Planning Commission or the County

Engineer had concluded that Walmart's project constitutes a subdivision, and even if this conclusion were based on Walmart's current plan, at best it would simply constitute their opinions; it would not provide the factual basis required for showing that Walmart's project is clearly a subdivision.

Relators' four purportedly "factual" reasons for why Walmart's project supposedly constitutes a subdivision also are flawed. First, Relators wrongly assert that Walmart's project is a subdivision because it supposedly involves the constra.ction of a group of commercial structures across six or more parcels of land and involves at least one parcel that is less than five acres. (Compl. TT 30-31.) Whether Walmart's project involves multiple parcels with at least one parcel being less than five acres, however, has nothing to do with whether it is a subdivision.

Section 1102.03(a)(97)(A) of the Subdivision Regulations refers to the °`division" of any parcel for the "purpose" of transfer of ownership. More specifically, Section 1102.03(a)(97)(A) provides:

The division of any parcel of land shown as a urnit or as contiguous units on the last preceding tax roll into two or more parcels, sites, or lots, any one of

-19- whether immediate or future, which is less than five acres for the purpose, of transfer of ownership, provided, however, that the division or partition of land into parcels of more than five acres not involving any new streets or easements of access, and the sale or exchange of parcels between adjoining lot owners, where such sale or exchange does not create additional building sites, shall be exempted; . . . .

(Emphasis added.) Here, the parcels were "consolidated," not divided, and, as shown on the application for consolidation attached as Exhibit 1 to W. FitzSimmons's affidavit, Walmart owned the property at the time.1a

Second, Relators wrongly assert that Walmart's project is a subdivision because it supposedly involves the allocation of land for the widening of a street. (Compl. ¶ 33.) Relators base this assertion on Stage-3 Plans that note "[t]he project consists of the widening of Rothrock

Road to the west for right turn lanes into a proposed commercial building." (FitzSimmons Aff.,

Ex. 3.) Relators then point to Section 1102.03(a)(97)(B) of the Subdivision Regulations, which

provides that a subdivision is created by "the improvement of one or more parcels of land for

residential, commercial, or industrial structures or groups of structures involving the division or

allocation of land for the opening, widening, or extension of any street or streets." Under the

Subdivision Regulations, however, a street extends from the edge of the right-of. way, not the

edge of the pavement. Section 1102.03(a)(78) defines "right-of-way" as:

A strip of land taken or dedicated for use as a public way. In addition to the roadway, it normally incorporates the curbs, lawn strips, sidewalks, lighting, water and sewer lines, and drainage facilities, and may include special features (required by the topography or treatment) such as grade separation, landscaped areas, viaducts, and bridges.

-^------loOther documents that Relators attach to Mr. FitzSimrnons's affidavit reveal that Walmart's FitzSimmons Aff., Ex. 2, project now involves only a single parcel-P.P.N. 1508274. (See Overall Site Plan, and Ex. 11, Comments from Community & Economic Development, Planning & GIS Division staff, dated 4/13/13.)

20 - And Section 1102.03(a)(108) defines "thoroughfare, street or road" as "[t]he full width between property lines bounding every public way of whatever nature, with a part thereof to be used for vehicular traffic." Relators, therefore, improperly equate widening a street's pavement with widening the street itself-which involves widening the right-of-way and a resulting division or allocation of land for the new right-of-way. The Stage-3 Plans, themselves, specifically sheets

15-17 showing that construction will take place within the existing right of way, demonstrate that while Rothrock Road's pavement area is being widened there is no "division or allocation of land" for the widening of Rothrock Road because the right-of-way is not being expanded.

Third, Relators wrongly assert that Walmart's project is a subdivision because it supposedly allocates or will allocate land as an easement for the extension and maintenance of a public sewer, water, and storm drainage. (Compl. ¶ 34.) Relators base this assertion on the

Henwood Memorandum. As noted above, even putting aside that Mr. Henwood left his employment with Summit County on May 25, 2012, the Henwood Memorandum is based on outdated plans from September 17, 2010, and, even if correct, consists of someone's opinion, not admissible facts concerning whether Walmart's project is a subdivision. Furthermore, it is apparent from the Preliminary Construction Documents dated January 7, 2013, which Relators attach as Exhibit 2 to Mr. FitzSimmons's affidavit that no need exists for the allocation of land as an easement for public utilities.

Finally, Relators wrongly assert that Walmart's project is a subdivision because it supposedly allocates land as open spaces for common use by owners, occupants, or lease holders. (Compl. ¶ 35.) Relators rely on Section 1102.03(a)(97)(B), which provides that a subdivision is created by "ft]he improvement of one or more parcels of land for residential, commercial, or industrial structures or groups of structures involving the division or allocation of

-21- land for the opening, widening, or extension of any street or streets, except private streets serving industrial structures; the division or allocation of land as open spaces for common use by owners, occupants or lease holders ...." (Emphasis added.) What Relators omit is that the

Subdivision Regulations define open space as follows:

That portion of land within a Subdivision devoted to public and/or private recreational facilities, or undeveloped land. Open Space shall not include land in private yards, areas set aside for public facilities, driveways, parking lots, or other surfaces set aside for vehicular travel, and not more than 80% of land counted as Open Space may be covered by water.

(Section 1102.03(a)(57).) An examination of the Overall Site Plan that Relators attach as Exhibit

2 to Mr. FitzSimmons's affidavit reveals that no land is devoted to public and/or private recreational facilities, or undeveloped land. In addition, the driveways, parking lots, and other surfaces set aside for vehicular travel are expressly excluded from the definition of open space.

As for the County Engineer's letter dated September 17, 2010, it only makes conclusions and, in any event, was clearly based on out-dated plans from 2010. Consequently, Relators are left with simply pointing to the Overall Site Plan-but they never inform the Court what open spaces they might be referring to.

Accordingly, as a matter of law, Relators, cannot establish that Walmart's project is clearly a subdivision. The Complaint must therefore be dismissed for failure to state a claim.

D. Relators Complaint Should Be Dismissed Because They Have Failed to Comply with S.Ct.Prac R 12 02(B)(1-2).

A complaint in mandamus must "be supported by an affidavit specifying the details of the claim . ." and the affidavit must "be made on personal knowledge, setting forth facts admissible in evidence ...." S.Ct.Prac.R. 12.02(B)(1-2). This Court has never hesitated to dismiss original actions that are not properly supported. See, e.g., State ex rel. Esarco v.

Youngstown State City Council, 116 Ohio St.3d 131, 2007-Ohio-5699, 876 N.E.2d 953, ¶ 14

-22- (dismissing claim for writ of mandamus because relator's "purported verification of the complaint" did not satisfy the "personal-knowledge requirement" and noting that "[a]11 complaints filed in original actions in this court, other than habeas corpus, must be supported by an affidavit specifying the details of the claim, and the affidavit 'shall be made on personal knowledge."); State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857

N.E.2d 88, ¶ 31 ("We have routinely dismissed original actions, other than habeas corpus, that were not supported by an affidavit expressly stating that the facts in the complaint were based on the afflant's personal knowledge."). Relators have failed to comply with S.Ct.Prac.R.

12.02(B)(1-2) because Mr. Fitzgerald's affidavit contains several averments based on

"information and belief," including the averment that Mr. Henwood is the "Subdivision

Administrator," which forms the basis for Relators' contention that Mr. Henwood authored the

Henwood Memorandum on June 26, 2013, and was the Subdivision Administrator that Mr.

McDowall refers to in the email attached at Exhibit 15 to Mr. FitzSimmons's affidavit. An averment on informati.on and belief does not constitute an averment on personal knowledge.

Because Mr. Fitzgerald's affidavit is not based on personal knowledge, it cannot properly support Relators' Complaint as required by S.Ct.Prac.R. 12.02(B)(1-2). Accordingly, the

Complaint should be dismissed.

IV. Conclusion

The Court lacks jurisdiction over Relators' Complaint because their true object is a declaratory judgment and prohibitory injunction-not a writ of mandamus. Tn addition to this lack of original jurisdiction, however, Relators' Complaint should be dismissed because they cannot establish, as a matter of law, that the respondents have a clear legal duty to require a property owner to submit an application for subdivision review. Moreover, even if such a duty

-23- existed, Relators cannot establish any breach of a clear legal duty because a project cannot be determined to be a subdivision until a zoning certificate is issued establishing a final plan, and

Copley Township has not issued a zoning certificate. Indeed, it is actually impossible for

Relators' to ever show that Walmart's project is a subdivision because condominiums are statutorily excluded from the defmition of subdivisions. Finally, Relators have not even complied with S.Ct.Prac.R. 12.02(B)(1-2). Not only should Relators' Complaint be dismissed, they should be sanctioned for bringing such a frivolous and unwarranted action in this Court.

Respectfully submitted,

0., 4 ^io 1. Jo S agter #09-0313 Sheldon Bems #0000140 ( se cord) J e S. Simon #0072770 Paul M. Greenberger #0030 36 An ony R. Vacanti #0080834 Jordan Berns #0047404 Buckingham, Doolittle & Burroughs, LLP Timothy J. Duff #0046764 3800 Embassy Parkway, Suite 300 Berns, Ockner & Greenberger, LLC Akron, Ohio 44333 3733 Park East Drive, Suite 200 Phone: (330) 258-6502 Beachwood, Ohio 44122 Fax: (330) 252-5502 Phone: (216) 831-8838 isla [email protected] Fax: (216) 464-4489 [email protected] sberns(A7bernsockner.com [email protected] pareenber er 2bernsackner.com [email protected] Attorneys for Proposed Intervening [email protected] Respondent Wal-Mart Real Estate Business Trust Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

-24- ak&040^! tlli . L j t t S Thomas M. Tepe, Jr. #0071313 Amber Justice-Manning #0082301 Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 Phone: (513) 639-3947 Fax: (513) 579-6457 ttese(a7,knzklaw.com ajustice-manning(a?kmklaw.com

Attorneys for Proposed Intervening Respondent Wal-Mart Real Estate Business Trust

_25.. CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Revised Motion for Judgment on the

Pleadings and Memorandum in Support of Proposed Intervening Respondent Wal-Mart Real

Estate Business Trust Correcting Exhibits "D" and "G" to Its Answer By Adding Inadvertently

Ornitted Pages has been sent by Regular U.S. Mail to the following this 29th day of August

2013:

Mark Wallach, Esq. Brian Heskaznp, Esq. Thacker Martinsek LPA 2330 One Cleveland Center 1375 East 9h Street Cleveland, OH 44114

Attorneys for Relators West Market Plaza Limited Partnership and Montrose Retail Associates Limited Partnership

Marvin D. Evans, Esq. Assistant Prosecuting Attorney 53 University Avenue, 6t4 Floor Akron, Ohio 44308

Attorneys for Respondents Summit County Planning Commission, Summit County Executive, RusselllYL Pry, Summit County Engineer, Alan Brubaker, Summit County Chief Building Official, John Labriola, and Summit County Department,o^'^uilding Sta

Lfi%-Proposed-ntervening art Real Estate Business Trust

-26- Exliibit 3 r^

Page I

^ IN THE COURT OF COMMON PLEAS 2 OF SUMMIT COUNTY, OHIO ^ ------4 COPLEY TOWNSHIP, plaintiff,

5 vs. Case No. CV 2011-07-4035 CITY DF FAIRLAWN, OHIO, et al., 6 Defen.dants.

7 KEVIN WOQDNI74N, Plaizttiff, 8 vS_ Case No. CV 2011-•08-4237 CITY OF FAIRLAWN, OHIO, et alT , 9 Defendants...... -- - ^ ^ ^. 4 STATE OIP OHIO ex reJ.. JACOB POLLOCK, ot al., Plaintiffs, 1i vs. Case No. CV 2012-02-1060 CITY OF FAIT2.LAWN, OHIO, et al., 12 Defendants. 13 ------14 Degositian of ROBERT STARK 15 16 April 26, 2012 10:00 a.m. 17 18 19 'Paken at . 20 Berns OCkn.er & Greenberger 21 3733 Park East Drive, Suite 200 22. Beachwood, Ohio 23 24 25 Todd L. Persson, Notary Public

Rennillo Deposition & Discovery 216,523-1313 A. Veritext Caxnpany 888-39I-3376 ;..,. :::i..... ,.:.. '^^...: -F..^.,...... ^._.:>- . .- r

.:, ^...._.^...... :::::::::...... Page

1 4. Mr. S tark , I'm handing you what was

2 marked in Mr. Newman's deposition Exhibit 1,

3 which I believe Mr. Newman testified was a map,

4 an aerial photo of the N#ontrose area of Summit

5 County. Would that be an accurate description

6 of that?

7 A. Ye s,

B Q. You'll notice there are a number of

9 numbers written, handwritten on this document.

10 Mr. Newman wrote those numbers there when I

11 asked him about properties that he, through

12 whatever entities, had an interest in. I'm

13 going to ask you the same kind of question.

14 Can you point out to me the

^s properties that Stark Enterprises either

16 directly or through some other affiliated

17 entity -- I'm not concerned about the

18 details -- but that Stark Enterprises has some

19 interest in?

20 A. Do you mean present, or past and

2]. present?

22 Q. Well, let's start -- here. If you

23 can do past and present at the same time, that

24 would be great. Sure.

25 A. Okay. What is marked number we

Rennill.o Deposition & Diseowety 216-523-1313 A Verite.xt Company 888-331-3376 Page 11

1 developed as trTest Marl€et Plaza_ What is marked

2 as number 11211 we devel.oped as The Shops at

3 Fairlawn. What is marked number "3" we

4 developed as Rosemont Commons. What i.s marked

5 number "4" we developed as the free-standing

6 Lowe's Store. What is marked number "5" we

7 developed as OfficeMax. And there's another

8 piece next to a.t that probably shou7.d be marked

9 that is an expansion of that at the corner,

10 what would be the northeast quadrant of

11 Cleveland-Massillon Road and Route 18, which is

12 referred to as OfficeMax PYa.za. Nurftber "6" we

13 developed as a parcel of land for single-family

14 home sa7.es that was a part of the development

15 of Rosernont Commons called --- I think we

16 referred to it as "Rose Farm" internally, and

17 it's -- I don't remember what the common name

18 is. Number 117" is an apartment complex that we

19 developed, whose name is alluding me. Azid

20 number "8" is the Rosemont Country Club, which

21 was part -- which we redeveloped as part of the

22 development of Rosemont Commons.

23 Q. Is number 7 The Enclave?

24 A. The Enclave Apartments.

25 Q. Now, a couple of questions to

Rennillo Deposition & Discovery 216-523-1313 A Veritext Company 8$8-391-3376 Page 12

1 follow-up on that. You said in describing each

2 of those, you used the term "we developed"h

3 Who's the "we"?

4 A. Herb Newrnan and myseXf,

5 Q. And before - -

6 A. And other partners. But really the

7 two of us were the lead development partners.

8 Q. Now, before you started your

9 answer, you made a distinction between

^. 0 properties that you currently own and those

11 that you no longer-own? 12 A. Right.

13 Q. Which fall into one or the other,

14 categories? is A. 6, 7 and 8 are properties that we

16 no longer own. 17 Q. So the properties that you still

18 own are the commercial properties along Route

19 18 and G1eveland-Massillon Road?

20 A. Correct.

21 0. And total square footage,

22 approximately; do you know what that amounts

23 to?

24 A. Approximately a million square

25 feet,. That we otill own.

Rennilla Aeposition & Aisoovery 216-523-1313 A Veritext Compatry $88-391-3376 ......

^^ .. Page 13

1 Q. Now, one of those shopping centers

2 that you pointed out on the map is Rosemont

3 Commons?

4 A. Correct. Q. That's where currently a Wal-Mart

6 and Sam's Club are located?

7 A. Correct.

8 Q. And there are other tenants there

9 as well, right?

10 A. YeSF

11 Q. Are you familiar with the financa.al

12 terms of the leases with Wal-Mart and Sam's

13 C7.ub?

14 A. No.

15 Q. Who at Stark Enterprises would be?

16 A. ,An.yone who has access to the data

17 that shows those terms. So people in is accounting and people in J.easing-

19 Q. At some point in time did you or

20 Mr. NewmazL, separately or together, direct your

21. attorneys to initiate a lawsuit relating to

22 development in the Montrose area on behalf of

23: some of the shopping centers that you have an

24 i.nterest in in Montrose?

25 A.' I don't understand the question.

Rennillo Deposition & Discovery 216-523-1313 A Veritext Company 888-391-3376 Page 14

1 Q. There 's a lawsuit that' s commonly

2 referred to among those -- the rest of us

3 sa.tting in this room, I thi.nk, as the West

4 Montrose Park -- 1'm sorry --

5 MR. WALLACH: West Maxlcet Plaza<

6 Q. West Market Plaza. Thank you.

7 Lawsuit, against the Summit County Engineer,

the Sumrnft County Planning Commission and

Summit County relating to devel.opment within

10 the Montrose area. Are you familiar with that

11 lawsuit?

12 A. Yesf

13 Q. Did you authorize the filing of

14 that lawsuit?

15 A. I guess so,

16 Q, What was the purpose of that

17 lawsuit?

18 A. To make certain that if properties

19 were developed along Rothrock Road, that proper

20 engineering studies would be done in order to

21 ensure that the traffic impaet of any type of

22 development done along Rothrock Road would be

23 managed so that the access to the freeways at

24 Route 18 or at Cleveland-Massillon Road would

25 not become bottlenecked, and that the level of

Rennilla Deposition & Discovery 216-523-1313 A Vezi.t.ext Company 888-391-3376 ;:>^ ,,.;^^: ^ P ^7

Page 15 i^ sarvice of the existing intersecta.ons in the 2 I: general area would not diminish irl service. 3 Q. At some poiut in time a settlement 4 agreement was signed in that Yawsuit. Is that 5 your understanding?

A. Yes. , Q. Have you seen that settlement agreement?

A. Have I•--- I'm sure I've seen it :. I

3,t haven't read the particulars of it. 1] Q. Are you aware that on behalf of

some of the shopping centers that you mentioned

that you and Mr. Newman developed, and still

14 own, a lawsuit was filed in the Summit County

15 Court of Appeals seeking to enforce that 16 settlement agreement?

17 A. Yes,

1. 8 Q- Did you authorize that lawsu:it?

19 A. Yes. 20 Q. And what was the purpose of that 21 lawsuit? 22 A. To make sure that what was agreed 23 to in the settlement agreement was foZlowed. 24 Q- Now, you mentioned with respect to 25 the first of those two lawsuits that the

^MGlllLi1V iJepo$1Tlon & j315coYe-ry 216-523-1313 A Vefituxt Campan.y 888-391-3376 Page 1E

1 concern was the impact of development,

2 commercial development on Rothrock Road, right?

3 A. No. What I saa.d was the impact of

4 traffic really primarily on ---- from my

5 perspective, from the perspective of protecting

^ our commercial developments, the impact of

7 traffio on Cleveland-Mass3Yiozz Road and Route

8 18.

9 Q. Has Stark Enterprises taken any

1.0 steps to challenge the proposed commercial

11 development on Rothrock Road that would include

12 a relocation of Sam's Club and Wal--Maxt?

13 A. Yes. We filed a suit with the

14 County Engineer, which we have appealed, as

15 you've just mentioned, in order to proteGt our

16 intexests in the event that a development of

17 that type would eventuate. is Q. Anything else that Stark

19 Enterprises hae done?

20 A. No.

21 Q. Obviously, you are more than

22 familiar with the development process. You're

23 a very experienced developer. So you know the

24 permitting process with the Army Corp of°

25 Engineers and the Ohio EPA with respect to

Rennillo Deposition & Discovery 216-523-1313 A Veiitext Company 8$8-391-3376 f. , ..

;'^>^:;`.•,;. ^^^.. Page 17

1 development of large-scale de-velopments like

2 shopping centers, right?

3 A. Yes.

4 Q. You're aware that the Ohio EPA

5 issued a water quality certification for the

6 proposed developrneat on Rothrock Road, right?

7 A. I'm ziot specifically aware, but I

8 believe they have.

9 Q. Did Stark Enterprises take a position with respect to the issuance of that

11 certification?

12 A. I think we wanted to make sure that

13 it was properly reviewed by the EPA.

4 14 Q. And it took that position publicly?

1.5 A. I think so, but I don't know by

16 what vehicle. 17 Q_ Are you aware that Tom FitzSimmons

18 attended a public rneetin.g with the Ohio EPA

19 regarding that water quality cert-ificati.on?

20 A. I'm not specifically aware, 21 Q. And just to be c3.ear,

22 Mr. Fit^:Simmoas is general couneel to Stark

23 Enterprises?

24 A. Corxect.;

25 Q. Does he hold any other position.s

Rennillo Deposition & Discovery 216-523-1313 A Vexs#ext CnmPaU 888-341-3376 Page 7a ^ lpftc sa 1 DEBQSfIlOhf 1ti3VI11SP S: I aln not CL'!tTlPICATION OF WI1NF^9 1 I do fua'ttler ccrtify that ti for either 2 . f^ 2 a relative, cotursel or attorrley A3.SlGNhMT ND. S0360 3 party, or othetwise inierested in the event of 3 CAS2NAMfl:Polloaklaoohv City a[rau9awn,Ohes rxa5. DAT$ OF W0$17'I0N:1+Pril 26, 2012 4 this ac'tib13. 4 p77TPfLSS" NAME: Rohcn Slasl: I have .hercunto 5 In aeoordttuw wilL the Ruks oCC:[vil Praced Wa, 5 IN WITNESS 1rVIID,tF.OF, Lhe•re isadft evtitair=scrtpl efimy tcrrimorry ar tt 6 set my hand and affixed my seal of office at 6 has i eeo read ta me. T 1 ha4e lisled mp e1+soEs 011 ttr0 9lmdlted F.SMb 7ClevelaIId, Ohio, on t11iS day of Sheet, ailiagpa.ES nnd line teanbers as,veli ae the reasoa(S) 8 ^ 2012. S forslieclsaage(a)- $ 1 xcqueri thal thrpvo chaflge.: hc cateled as Part of Iha 9 rt.aord oPmy testinbrty_ 1U t0 T]save exeottted thc lirate S6act. as mell as Ihis l l Carilficata, and reqtrest and snthorixe tLal boilh 6e appeorled tu ILe trauscript oEmy testimaoy ead ]ta ineurporatedthoncin. !2 12 13 ...... -...... 13 17afc Rrinc13 adar> L. Persson, Alotary I'tlbllc 14 14 Todd S'srorp to mrd suhsanberl>xl ole mr4 a ldaaaty Pablic In 15 within and for tYle State of Ohio 15 anl for 9re 5tate and Coumy, the:efnnaneed wiutess did peasonally aPpear and aakuowkdge that: 16 16 17 My cotrmlission expires July 28, 2012. They kave rrad 4re transeript,; 17 Theylmvellsted a1lafttdraatradioasiothe 18 eppxttded Errata SLeet ytiJllrielrlfrr I8 Tlu:y sÛad4re for'eS3hjCa+?emS7atemenl; aad 'llloir execetiarr of this sbtemaut is of theirl'tee . 20 14 aaiaaddeed. 20 1 have atfixed my >Mo rmd of6eial ctt llils 21 dayof_- 21 . ^sk^ r }7ilr= 7.2 • ------^ 23 ...... 23 ldut:ng Paat3o 24 24 arreiitis^ . 25 25 Commia*e Lxphntlon Dato Paga 79 Pagc 81 1 DEPOSTf1UN RIiV1EW 1 F^tRlt"1'AîI3EC C13R'f1P7CATlON GF WITNESS Rl'dìNIL1A Dt;POSIT(ON 8c DISCOVERY - A VF?Rm^X.T COMPANY 2 2 ASSIGNMeFQI' N4.50360 ASSIGNMEiVTNO. SD354 3 PA.G£/i.BtH[SI f t73ANGB 1 REASON 3 CASBNAML••Pnllock,Jpcabv.City ofCâi[lawn,Otda,etal. IlA7'n OF I]PPt751T10N: April 26, 2U12 ...... "'_-______..------'------4 WITNESS NA11dH: RoTout Siark 5 ____,,._------_..... :______...______5 in acooivlance witll Ilte Ihiles of Crivil Proocdua, ------..... ------I haeemd tha antirc traraeript of my testimm7ly nr lt 6 ,.------° 7 ------...... , ------_____...... ------6 hns bc¢o Yead to me. 7 I laive rnazla no ehango to ttte testimrmy as g °'------"------°°------. tmnson'bed by ckta cout#teporle,, " ...... ,.------•- g ------.------8 ______...... , 9 ------______...... ------_------IU ki,, 12 ------'------.------'-- ll 13 ------..---____._------______..-.______.___,------befnrt me, a]Votary PnBlie in Swom to aad suhson'bad ...... 12 atsdfortheStatemtdzromrty,llrerah;mnced'vitnpBSdid 14 persannlly appesr and aclTaWtedga titat: 15 ...... ,_ ___ ------13 16 ------.______.------. ------They I:ave readthd ttanscsipW 17 _____--____.. ------.-..______- the foregoingsmrn Slatemuent; artd 14 Ikicysiglted ...... 11u:ir execntinn urthls Slatument a af tlleir ftce 15 acd oed dta:d. 19 ------_ _'______° ------_ 16 Da6c Rnherf Stadc . 1 have adixed my name and affiei:tt sed tlds _. 20 - 17 SIlI38CR1eeDAND8WORNToEEF41tLME17'11S TMYfl1T d4yd ® ------'1EE 18 21 19 `'i'------^ ^ 22 20 tJotary Publse 21 Z NOTARY PiJl1I iC 22 Crnouslssiaa 1?xpir+sliauDatc 24 23 25 CAnaniss9on Fxorallost Date 2¢25 21 (Pages 78 - 81) RenI.tillo Depositiazt & Mscoveay 216-523-1313 A Veritext CamPany 888^-391-3376 Exhibit 4 Page I

1 IN THE COURT OF COMMON PLEAS OF SUMMIT COTTi3TY, OHIO ------2 COPLEY TOWNSHIP, 3 PJ.ai.ntiff, vs< Case No. CV 2011-07-4035 4 CITY OF FAIRLAWN, OHIO, et al., 5 Defendants.

6 KEVIN WOODMAN, 7 Plaintiff, vs. Case No. CV 2011 08 4237 a CITY OF FAIRLAWN, OHIO, et al., 9 Defendants.

10 STATE OF OHIO ex rel< 11 JACOB POLLOCK, et al., Plaintiffs, 12 vs. Case No. CV 2012 02 1060 13 CITY OF FAIRLAWN, OHIO, et a7..3. Defendants. 14 ------i5 Deposition of 16 TOM FITZSIMMONS - REVISED 17 APRIL 20, 2012 18 9:10 a.m. 19 20 Taken at: 21 aerns, Ockner & Greenbergex, LLC 22 3733 Park East Drive 23 Beaohwoad, Ohio 24 25 Bva Petrone, RPR

Rennillo Deposition & Discovery 216-523-1313 A. Veritext Cornpany 88$-391-3376 Page 13

i basis for those same pieces of anal.ysis, but as

2 it relates to the organization, I now am kind

3 of the last answer on all of the propexties in

4 the entire portfolio, including those.

5 Q. Are there any other properties or

6 entita.es that own properties or manage

7 properties in the Montrose area which you

8 provided legal services?

9 A. To be clear, as it relates to the ia four shopping centers izz the Mon.tx'ose area, l^ which I call Rosemont Commons, West Market

12 Plaza, OfficeMax Plaza, an.d Shops of Fairlawn,

13 there are associated entities at various level.s

14 within those ownex'ship enta.ties.

15 And, for instance, West Market

16 Plaza actually is a ground leased centex so

17 there is an ownership entity and a ground

18 tenant. So in that portfolio of shopping

19 centers, all of the affiliated entities T have

20 provided legal services for, as well as for

21 Lowe ls, which is kind of an of f shoot of West

22 Market Plaza.

23 So other than those.operatzng

24 shopping centers, I canft think, I can't recall

25 any other entities in the Montrose area that I

ltminillo Deposition & Discovcry 216-523-1313 A Veritext CoxnpanY 888-391-3375 Page 14

1 have represented.

2 Q. During Mr: Newman;s deposition

3 yesterday there was some talk about Summit

4 Managernent Services, Inc., Mr. Newman's

5 apartment management oompany. Have you ever

5 provided legal services to that entity?

7 A. Not directly fox that entzty. 1"

8 think I provided 1egal services to Herb as a

9 partner for all of the ezitities that he was

1D involved in, but not for Summit Management

13. services, no.

12 Q. Have you provided 3.egal services in

13 connection with aziy of the xesiden.tial

14 deve].opments that Stark Enterprises has been is involved in in the Montrose area?

16 A. I have not. We divested our

17 interests in those prior to my joining Stark..

18 Q. At some point in time you became

19 aware that Walmart and Sam' s Club were 20 considering relocating to Rothrock Road --

21 A. Yes.

22 Q. --- in Copley Township?

23 A. Yes.

24 Q. When did you learn that?

25 A. As with Herb, although I don't have

Rewrtillo Deposition & Discovery 216-523-1313 A Veritext CamPany 888-331W3376 Page 15

1 the same reasons to chalk it up, I don't have

2 any idea when it was. If I were to

3 approximate, I would say it was roughly in the

4 2008 range, but I don't have any idea

5 specifically when.

6 Q. How did you learn that?

7 A. I don't recall that either,

8 Q. Did you have any concerns about

9 potential relocation of Walmart and Sam's Club

10 to Rothrock Road in Copley?

11 A. Yes.

12 Q. What concerns did you have?

13 A. I want to be careful because a].ot

14 of this deposition is going to tread the ground

15 of legal advice versus, you know, nonlegal

16 advice. From a practical business perspective,

17 I share the same Concerns that Herb explained

18 yesterday relating to obviously loss of

19 tenants. We don't ever like to lose tenants,

20 but to the potential impacts oE that

21 development on our commercial properties in the

22 Montrose area.

23 Q. At some point did you learn that

24 there was some public opposition to the move by

25 Wa1Mart and Sam's Club --

Rennillo Deposition & Discovery 216-523-1313 A Veritcxt Company 888-391-3376 Page 16

1 A. Yes.

2 Q. -- to Rothrock Road?

3 A. Yes.

4 Q. When did you first learn of public

5 opposition to that?

6 MR. W,ALLACH: Let me interrupt now.

7 As you start asking Tom about when he learned

8 things and how he learned them, some of the

9 things he learned he is goizlg to have learned

10 in attorney-client communiGations as part of

11 information being supplied to him to provide

12 legal advice. So I just suggest at this point

13 to the extent possible, confine your answers to

14 sources of information that were not

16 privileged.MR. aERNS: Let me just, to

17 clarify, I understand what you are saying and

18 why you are saying it. The question I asked

19 was a when question, not a from whom.

20 MR, W.A,LLACH: I understand, but

21 some of the other questions have been where

22 which imply from whom..

23 MR. BERN'S: obviousiy, I don't know

24 whether Tom has learned this information in an

25 attorney-olient privilege setting or not.

Rennillo Deposition & Discovery 216-523-1313 A Veritext Company 888»391-3376 Page 19

1 hearings or at council meetings or something

2 like that.

3 Q. Have you ever provided documents to

4 Ms. 5abino?

5 A. No.

6 Q. informata-on about the project or

7 traffic issues?

8 A. I don't recalY ever having any

9 specific conversation about any facts related

10 to this other than just kind of a, you know,

11 hello, how are things going. Nothing more than

12 that.

1. 3 Q. And do you recall ever sending her

14 anything or giving her anything?

15 A. I don't recall that, no,:

16 Q. Do you know whether Stark

17 Enterprises or any of the entities involved irx

18 the Montrose area retaa.l properties have given

19 anything to Citizens for a Better Montrose?

20 A. Not to my knowledge.

21 0. At some point in time did you learn

22 that there was a petition drive seeking to

23 widen Rothrock Road?

24 A. Yesterday at the deposition. unaware? 25 Q. Before that you were

Revnillo Deposition & Discovery 216-523-1313 AVeritext CompanY 888-391-3376 Page 20

1 A. I never heard of that before.

2 Q. no you know who the proponents of

3 that petition drive were?

4 A. I don't. I literally know nothing

5 about it other thax;. what you may have mentioned

^ yesterday.

7 Q. At some point in time, Stark

8 Ente.rprises and affiliated entities began

9 taking steps to challenge the proposed

development on Rothrock Road, is that a fair

11 description of what they did?

12 A. It's a fair statement, yes.

13 Q. What was the first act that they

14 undertook to challenge that development, to

15 your knowledge?

16 A. I don't recall. To be honest with

17 you, this, as you know, has takeza, on ali.fe is larger than I think anyone necessarily

19 initially anticipated and there has been a lot 20 that has happened over the last four years, so

21 I don't remember specifically what, the very

22 f irst thing that we did. My sense .i.s it was

23 the filing of the action against the county,

24 Q. And that action was in response to

25 the proposed development of . the Rothrock Road

Rennillo Deposi.tim & Discovery 216-523-1313 A Veritext Compatxy 888-391-3376 .fs:>

.1. property for a Sam's Club and Walmart?

2 A. It was prompted by it, yes.

3 Q. What do you mean "prompted by it'E ?

4 A. The proposed development at that

5 time and the traffic study that was provided at

6 that time pointed out an issue as it related to

7 the lack of comprehensive traffic planning in

8 the area and that is what initially led to that

9 litigation.

10 Q. In general terms, what role did you

11 play in that litigation? I'm not asking for

12 the counsel that you rendered, I'm just asking

13 what your role was.

14 A. I oversaw it from a legal

15 perspective in nearly every degree.

16 Q. During the time that that lawsuit

17 was pending, you were real estate counsel for ie Stark EnterQrises'?

19 A. Yes.

20 Q. And just to be clear, when I say

21 "still pending," I mean up through the

22 execution of the settlement agreement.,

23 A. Yes _

24 Q. Obviously your role has changed as

25 the lawsuit has carried on,

Renniilo Deposition & Discovery 216-523-1313 A Veritext Coinpany 888-391-3376 Page 22

1 A. Right.

2 Q. I'm going to hand you what's been

3 marked Deposi.tian Exhibit 10 at Mr. Newman's

4 deposition. Tha.s a].etter dated June 17 that

5 indicates it was sent on behalf of Mr. NewmarL

6 to Connie Kraus at the Summit County Department

7 of Community axid Economic Development, all of

8 the merftbers of the Summit County Planning

9 Commission axld A1. Brubaker, the 8umunit County

10 Engineer. You have seen this letter before?

11 A. I have.

12 Q. Just to clarify, the signature here

13 appears differezit than Mr. Newraan's and there

14 is a slash with a f'TAF" after it. Those are

15 your initials?

16 A. They are.

17 Q. You signed this on behalf of

18 Mr t Newman?

19 A. I did.

20 Q. Is this alettex' that you prepared

21 on. Mr. Newman's behalf?

22 A. I prepared it in consultatzon with

23 D+Ir. Newman, yes. I mean in conjunction with

24 him, along with him..

25 Q. Did anybody else acting as counsel

Renni11o Deposition & Discovery 216-523-I313 A Veritex-t Caynpany 88$-391-3376 Page 39

;. ps.rties . t' Third compax'ed to whom? Their work

2 that Mr. Fitzsirnmons was doing as an attorn.ey

3 as part of litigation, I believe that they are

4 properly treated as attorney worlc pxvduct.,

5 Q. Let me try and parse this out a

6 little bit<.

7 To your kza.owledge. Mr. k'itzSxmmons,

8 has Roetzel & Andress provided legal services

9 to Stark Enterprises or any of the entities in

10 which it's affiliated in the Montrose area in

-11 conjunction with the proposed development of

12 Rothrock Road property?

13 A. I don't believe so. I don't recall

14 any instance in which they did.

15 0. Has Roetzel & Ara.dress, to your

16 knowledge, ever provided legal services to

17 Stark Enterprises and any of its legal

18 at:fil.iates in any manner?

19 A. Yes.

20 Q. It has?

21 A. Yes.

22 Q. But not in conjunction with the

23 proposed development of the Rothrock Road

24 property?

25 A. I don't recall any instances they

RenDal lo Deposition & Utscovery 216-523-1313 A. Vari.text Company 8$8-391-3376 Fage 40

1 provided services to us with respect to this

2 development or with respect to the project.

3 Q. What about with xespect to any

4 properties in the Montrose area?

5 A. Ever?

6 Q. Ever.

7 A. Yes, they have4

8 Q. Which properties?

9 A. I can only speak to the time since

10 I have been there. Mr. Funk represented us

11 briefly with respect to a zoning matter in Bath

12 Township and that's the only specific matter I

13 can recally

14 Q. When was that? i5 A. I can't peg the date, My sense is

16 it was before all of this started, but I can't

17 say with any specificity.

18 Q. And Stark Enterprises is not a

19 party to the environmental review appeal

20 cornnniasian matter, correct?

21 A. Correct.

22 Q. I call it the ERAC matter.

23 A. I'm familiar with the termr and no,

24 they are not.

25 Q. And none of the entities with which

Rennfflo Deposition & Discovery 216-523-1313 A Veritext Company 888-391-3376 Page 41.

Stark Enterpriseg is affiliated a;e a party to

that appeal, right?

A. I believe that' s correct, yes.

0. At some point in time did you talk

to somebody who was acting on behalf of the

City of Fairlawn about Stark gntearprises paying

its Zegal fees in the ERAC matter?

MR. WALLACH: I think that's a fair

9 question.

10 A. I believe so> I believe Mr. Funk

11 and I discussed that issue.

12 Q. Before or after the appeal was

13 filed?

14 A. Probably both. My memory is that

15 it was -- the topic was discussed before it was

16 fiJ.ed.,

17 Q. ,And at some point in time, Stark

3. 8 Enterprises reached an agreement with the city

19 to pay Calfee, Halter for the expensesr for the

20 legal fees and expenses for that deal?

21 A. I want to be careful with the word.

22 I don't know that there was a written

23 agraement<

24 Q. That would have been my next

25 question.

Reluvlto Deposition & 1]iseoveiy 21G-523-I313 A V(iitext Carnpany 888-391-3376 Page 42

1 A. There was an agreement ta pay

2 legal yes.

3 Q. And that was an agreernent, just to

4 be clear, an agreement between Stark

5 Enterprises and the City of Fairlawn?

6 A. That agreement, the agreement to

7 pay those fees was between those -- I don't

8 know if it was Stark. Frankly, I don't know

9 what entity paid those fees, but the Stark

10 Enterprises, Herb Newman affiliated entita.es

11 reached that agreement with the city, yes.

12 Q. zs there an agreement between one

13 or more of those entities and Calfee, Halter to

14 pay those fees?

15 A. I know that there is a retainer

16 letter. My memory is that the agreement was in

17 that letter because it's attached to one of

18 those filin.gs. I doa`t recall if there is

19 anything additional or not.

21 (Thereupon, Deposition Exhibit 25,

22 Exa,gagement Agreement, was marlred for

23 purposes of identification.)

25 Q. Is Exhibit 25 the agreement you

Rennillo Depositiou & Discaveiy 216-523-1313 A Veii#ext Company 888-391-3376 Page 43

1 ! were xeferring to, Mr. FitzSimmons?

2 A. It's the agreement z'm referring to

3 when I made a reference to something being

4 attached to the filing. I honestly, as I sit

5 here, don't recall whether there was a,separate

6 piece of paper with Calfee making a corollary

7 agreement on behalf of Stark Enterprises.

8 I know that this is signed by --

9 this is aza engagement letter between the city

10 and Calfee. I don't recall whether it was a

11 separate piece of paper with us.

12 But some Stark entity has in fact

13 paid the city's legal fees to Calfee, Halter

14 for the ERAC matter?

3. 5 A. Y e s .

16 Q. Do you know how much has been paid?

117 A. I don't recall offhand, no.

18 Q. Why is that entity paying those

'!_ 9 legal fees?

20 A. I'm trying to be careful so I'm not

21 getting into the attorney-client aspect. There

22 is undoubtedly commonality of intereat of

23 various issues between our 'enta.ties and the

24 city's. There is undoubtedly noncommonality of

25 interests. You have our various interests.

Rerniillo Deposition & Discovery 216-523-13I3 A Verifext Company $88-391-3376 Page 44

.a This is orxe of the areas where the interest

2 overlaps.

3 Q. When you say the "interest

4 overlaps," if the ERAC appeal were successful,

5 the certification that the Ohio EPA granted for

6 the project would be overturned; that's the

7 goal of the appeal, right?

8 A. I don't -- I just want to be

9 careful. I don't do a lot of en.v'ironmen.tal so

10 I don't know what the actual legal impact of an

11 adverse decision from ERAC is. I would assume

12 that that is a result that it is revoked and

13 that the result would be that, not necessarily

14 that the development couldn't happen, but that

15 that certification would be revoked.

16 Q. Which may very well prevent the

17 development from proceeding.

18 MR. F'UNK: Objection.:

19 A. Might. Might rzot.

20 Q. But that's the common interest is

21 to challenge the development as now approved by

22 the Ohio EPA.

23 MR. FUNK: Objection.

24 A. I don't want to speak to the city's

25 interests. I have a perception that there

Reniiillo Deimsi.tion & Discovery 216-523-1313 A Veratext ConVany 888-391-3376 Page 45

1 is I think it has been relatively clear from

2 many public documents and from many depositions

3 that we think that that development as it is

4 currently constituted and with the traffic

5 planning associated with it is very,

6 potentially very detrimental and adverse to our

7 investinents in Mont.rose.

8 The city I believe hQlds a similar

9 view as it relates to the interests of xta

1a residents. I'm just speaking for me and it' s

1^. that commonality that I refer to.

1,2 Q. But I want to be clear and I don,'t:

13 want to argue with yQu, but the ERAC appeal

14 doesn't go to traffic issues relating to the

15 development, it goes to the water quality

16 certification granted by the Ohio EPA, that , s

17 your urxderstanding, right?

18 A. It's, my understanding is that

19 there is a socioecon.omic aspect to the OEPA's

20 analysis that is not just a numbers analysis of

21 water.

22 Q. Other than agreeing to pay

23 Fairlawn's or Calfee, Halter's legal fees or

24 representing the City of Fairlawn in the ERAC

25 matter, has 5tark Enterprises or any of the

Rennillo Deposition & Disaovey 216,523-1313 A Veritext Company 888-391-3376 Page 46

1 affiliates of Stark Enterprises agreed to pay

2 any other attorney's fees for representation of

3 the City of Fairlawn?

4 .A . No:.

5 Q. It hasn't agreed to pay any of

6 Roetzel & Andress's fees.for a.ts representatxon

7 of Fairlawn in conjunction with anything zn the

8 Montrose area?

9 A. We are not reimbursing the City of

^.o Fairlawn' s legal fees with respect to any

7.1 matter other than ERAC. 12 Q. Or paya.rzg diarectly.

13 A. Paying directly in any way, shape

14 or form, whether it's through law firms or

15 through them, we have no arrangement whatsoever

16 other than with respect to the ERAC.

IB (Thereupon, Deposition Exhibit 26,

19 E--rnail, was marked for purposes of

20 identification.)

22 Q. Mr. FitzSimmons, Exhibit 26 is an

23 e-mail from Steve Funk to you dated November 2,

24 2010 fox-warding Rosemont Boulevard and Rothroclt

25 Road closing legislation.

lteimillo Deposition & Dxscoveiy 216-523-1313 A Veritext Company 888-391-3376 Page 126 Page 128 I REPORTER'S CER.TIFICA'IB 1 DEPOS,iTIL]NRLtVEW CM1'IF1cn7'1Cxv or• wt'l'NE4s 2` Tlie Statc of Ohio, ) 2 3 SS: AsS]ONMM7 NO 50133 3 CASEIQIiME:Pallack Jacobv. CfyofTairlown,Ciilo, etal. 4 County ofCuyahoga. ) DATE DF I)EPOSIITOiH: Apn'F 20, 2012 4 WITNESS'TfAhLS: Tom Fltssinrmoas 5 - 5 In aeeordmoc with the ftufos orCirif Prrxedure, 6 I, Eva Petronc, a Notery PubGc I have rtad the entire transcript ofmy testiruony or it 6 basbeenmadsonp- 7 within and for the Siate of phio, duly 7 1 Bavo nrsda no alangm to foe hu4imrniy as 8 commissaaned and quaiified, do hcrclry oertify icana:srbed by 11re oerarl reporter. a 9 that the within named witness, TOM ET!'ZSTA+TMONS, 9

10 was by ine t"Irst duly swoin to testify the I ll paffi ^om ^r^:^:^R3s 1 1- irtitil, tlle whole lttlth and nothing but the 11 3nnsrn to and tpbdwbei he5are.nc, a Notsry PubGs in 12 tmth in the cause aforesaid; that !he 12 and for #lsc Stete anr2 i;ounty, the nefmnoad eritncas did 13 testimony then given by the above-refierenced paasoually appeor end anknawledge thot: 13 14 witness was by me teduced to stenotypy in the 'rlmy have rm[} the Iransoript; 15 presence of said witness, aftcrwatds 14 'J'hry signcd tha forry^aint: iworn Smtanrent; and ']kcir cxeeutsn ofilris Stataaent is of their frce 16 transa'he.d, and fhat the foregoinl; is a trne 15 actarsddeed. 17 and correct transcription of the #estimony so 16 1 hsve aflixnl my namn and ufficial acvl thia -..,.--__ 9 8 given by tho abovo-i'e£el enoed witness. 17 19 1 do furttter oertify that #ilis :3ny ul 2{t ls 20 deposition was taken at the time anci place in l9 ------21 thc foregoing caption spcciSied and was 20 Nwary Pntw - - - 22 completed without adjounntneni. 21

23 22 Comm9ssiorr 1'sxpirarion Dase 24 23 24 25 25

Pagc 1.27 Page 129 1 I do ful'ther certify tliat I aizl. >)ot 1 1a151'4SIT1oN RSNIHW CER7N1CATi4N OF lVl'1'NI;SS 2 a relative, counsel or attorney for cither 2 ASSIGNMF,NTN13. 50133 ^ pai'ty, or otherwise interwted in the eveart of 9 CASENAME:1MaocyJacch Y. City ol'tFaldawu, dhio, et a!. 4 this action. nA'rE 1]F x3Ept}gt77oTf: Ape'i120, 2012 4 V^i iTNFSS' NAME: Tom Ftzsi3rnnoas 5 iN WITNESS VJHE1tEt7F, I have hereunto 5 lnacoordaea with the Rulas nfCivll N,oonl,ue, i hsve xed the entire tranacitptotniy test53tony or Jt 6 set my hand and affixed my seal of office at 6 hasbaenreadtome. 7 l have listed my disnges oa tLe auached Brrata 7 Cla17d, Ohl.o, on this DL" day of 8lrret, &stingymp and Ihre iusmbera as well as tlre rxaron(s) 8 2012. S rifr• tAa uftaase(s). - 9 9 1 requcsl that tlDese ehaagrs bo neecmd as n®rt orto reaord of rrp tes{irdo uy. 10 10 I luvic egecute8 tho P.vata Sl+oet as prell as this 11 11 CerttfJCste, and request and authoane Ihat bolh he appeuded 12 rn dre Itameripr nf my resrimc8ty sua3 b: inWrpmatpl oierpin. 12 13 13 ------...... ^•..:: . , _,;:,-,,, ^,:,,,< ------14 Eva Petrone, Notary I'ub[ic 14 15 wi#bin anst for the Ste.te of Ohio Swern to and su69a[ibcd bcruio ana, a Nptary PubFis in 15 andTertbe Stata and County. the retfsrenced witness did 16 personalEy appeer and aclanwledgc timt; 16 17 My emllni.ssion expires February 1, 2013. Tlle.y Lave reed the traaxQipt; 18 17 Tkcy harn lis[nd e1t uftbcirco

23 23 Nolary Yu9llc- -- - - 24 24

25 25 33 (Pages 126 - 129) Rcnnillo Deposition & Di-scovery 216-523-13 X 3 A Veri.text Company 888-391-3376 Exhibit 5 COn Y•

y *0 ^^^^^•^^i

^^ ^ ^ ^ C^

^'a IN TIIE COURT OF COMMON PLEAS SUMMIT COUNTX, OHYO

STATE ex rel. WF-ST MAMT PLAZA ) LTMiTED PARTNERSFIIP et al., ) CASE NO. CV 2008-10-723I ) Plaintiffs, ) 3UDGEPATRICIA CE3SGROVE

GREG BACDMAN, Suxunit County Bnguieer, et aL, AMENDED COMPLAINT 1]efendauts.

PARTIES

1. Plaintiff, West Markct Plau Limited Partnership ("Vdcst Mailcet Plaza"), is an

Obia limited partnership with its principal place of business in Bath '£owttship, Ohio. West

Market Plaza owns and operates a shopping center located at the intersEction of West Market

Street and Cleveland Massiklori Road in Sununi.t County, Ohio (the "County").

2. Plaintiff, Montrose Retail Assoaiates Limited T'artnership ("Montrose Retail"), is

an Ohio limited partnexship with its prxncipal place of business also lacated in Bath Township,

Ohio. Montrose Retail owns and operates another shopping center at tha intersection of West

Market Street and Cleweland-Massillon R.oad in the County.

3, West Market Plua and Iylontrase Retail bring this action in their individual

capacity as to Count One of the Complaint and, in accardance with Ohio Revised Coda §

2731.04, on behalf afttze State as to Count Two ofthc Complaint.

{40459839.DOC;2 ^ COPY

4. West 1VMarket Plaza and Montrose Retail shall be collectavely referred to herein as

"Plaintiffs" and their shopping centers, as described in Paragraphs 1 and 2, shall be coilectivcly

^ referrod to hercin as the "Centers:"

5. Defendant Greg Baciima.n is the County Engineer for the County (`Bngineor"),

the principal place of business of which is 538 & South Street, Akton, Ohio 44311. The

Engineer setves the County pursuant to Section 315 of the Ohio Revised Code and tkre Sumvnit

County Codified Ordinances.

6. Defendant, Sm=it County Planning Commission (the '°Commission"), is the

Planning Comm.ission for the County, with its principal place of business at 175 S. Main Sh'eet, ,:.

Raoin 207, Acron, Ohio 44308. 'fho Commission was established pursuant to Ohio Revised

Code § 713.22 and is charged to "exercise the powers mid duties established by general lara+"

Summit Courrty Cod.i.fied Ordinance ("SCCA"), § 141.01.

7. This Court has jurisdicticm over the rnatters presented herein pursuaa to Ohio

Revised Code § 2305.01 and Sectaon 4, Articie 1V of the Ohio Constitution.

ALFENi]AN'fS' RGLE IN MONITORING AND PROVIDING FOR PROPER TRAFFIC MAINTENANCE IN THE COUNTY

8. As set forth in SCCO Part 11, the Couaxty adopted regulations for the review and

approval of Subdivisions, as defined irl § 1102.03 and including both Major and Minor

Subdivisions as also defined therein (collectivoly "Subdivisions"), falling within the

unincorporated areas of the County. See SCCO § 1101.42.

9. Tn so doing, tbe County sought "to secure and provide for Summit County" a

nanab^x of ob,jectives, including: "[t]he proper atrangement of streets or highways in relafion to

existing or proposed streets and highways and the thoroughfare plan;" °`[a]dcquate and

convenient open spaces for tra£f'ic, ntilitiips, access for fire-figlxting apparatus, recreation, light

{06459839.00Q,2 l 2 CflPY.-

and air, and the avoidance of congestion of the population;" "[t]he orderly, efficient, and

appropriate devetopment of land;" "[s]afe rdnd coslventent vehicular and pedestrian move.rneri,t;"

"(t]he promotion ofpul}lic health, safety, comfott, convenience, pirosperity, and general we[fare,

and the protection of tlg-. erlvironrnent;N ancl"jt)fre equitable handling of all subdivision plats by

providing unifor.m procedures and standards for observance by both the approving authozity and

Developer as defined [in Part 11l." SCCO § 1101.02.

10. In addition, the County recluired that Subdivisions' "[a]ccess sysums shall be

properly designed so thoroughfares will be able to accommoclate the access needs of continued

development while retaining their primary transportation fitnction." SCCO § 11 0$.04.

11. In carrying out these 4bjectives,l]evelopers are required to prepare traffic bnpact

studies for Subdivisions that have access off of County rnads. SCCO § 1108.E14.

12. The required traffic impact studies '°must evaluato [the] ef#'ect of Subdivision

traffic with regard to access Management along frorrtage af County Roads and acljacent

in.tersections.'° SCCO § 1108.04.

13. ne traffic impact stitclies "must also identify [the] type of traffic improvements

required (i.e., tur-n lmtes, traffic siguals)." SCCO § 1108.04.

14, Thus, tlte County has iletermineti that the assessment and analysis of

thoroughfares connected to Subdivisions witliin the County - and their continued operation for

the saf®ty and welfare of the public - is a!u intpot^ait roid for tlic l;rraiuy and its uffsaais IIt

varying capacities.

15. Indeed, the County requires that the Subdivision regutations "shall be broadly

constraed and interpreted so as to achieve tfieir essential purposes." " SCCO § 11D1.416.

10O459939.D00,2 I 3 COPY,

16. Pursuant to SCCO § 1101 et seq., the Coaxnniss;ion is required to review and

approve all plans for Subdivisions.

17. As a part of that review, the Commission relies on tha Engineer to review and

issue recommendations within the Engineer's scope of responsibilities for the approval of all

plans for Subdivisyons. See SCC,`4 § 1103.01 etseq.

18. The Engineer's review and feconunendationa as to plans for Stibdivisions must be

in furtherance of the objectives of the County and its Codified Ordinances in reviewing and

approving Subdivisions, rnc3uding the objectives set forth in 15, supra.

19. The Engineer's revieiv of Subdivisions furthers his duties to "prepare all plans,

specifications, details, estimates of cost, and submit faornx4s of contracts for the construction,

maintenance, and repair of all bridges, cutverts, roads, drains, ditches, roads on cvunty

fairgrounds, and other public improvements ... coxlstructed under Lhe authority of any board

within aeid for the county." O.R.C. § 315.08.

20. Moreover, the Engineer's review of plans for Subdivisions also furthers his

respaiisibi:lities "for the inspection of all public improvements made under authority of the board

of county commissioners" and his rnmidate to "n.alca all surveys required by law, ... per:l'orm all

necessary services to be performcd by a registered surveyor or rcgistered professional engineer

in connection with the construction, repair, or opening of all eounty roads or ditches constau.cted

under the authority of the board, and ... perl'arm other duties as the board [of counLy

commissioners] requires:" O.R.C. § 315.14.

;O0458839.D0C2 ) 4 COPY°

TSE CHA)C.1i,ENGES OF TFM l1+trONTROSE AREA

21. At or near the intersection of Cleveland-Massillon Road and West Market Street

in the C4unty, there are numerous Subdivisions, which colleotively have come to be known as

fhv "Montrose Area.,,

22, The Monitrose Area has become a signii"icant retail district within the County in

which numerous big-box retailers, small and micl-size retail operations, restaurants, movie

theaters, and other service providers are located.

23. Over the past 10-15 years, development in the Montrose Area has skyracketed..

24. Accordingly, the Montrase Area has been increasii7gly burdened in the form of

significant traffic congestiQ31 on Count•y, City ofFairlawix, State, and Interstate thoroughfares--all

of which converge in the Montrose Area.

25. Because of the ennvergenco of numerous major thoroughfares in t1ie Montrose

Area, any further pla.nned Subdivision in that area would impact the enttre Mnntrose Are$ and,

tlicrefoxe, any assessment of the impact on traffic for a planned Subdivision must assess the

impaot on the entire such area. '

26. However, over the past 15 yeass, the Engineer has neither conducted nor required

any traffic impact studies to assess the ixrtpact of traffic genmted by jtew Subdivisions in the

Montrose Area on the County's objectives as set forth in SCCO § 1101.02 and others.

27. Upon information and beticf, the Engincer has relied, and continues to rely, on an

Akron Metropolitart Atm Transportation Study that was completed in 1989 (the "AMATS

Study").

28. However, the AMATS Study, duo to its age and the subsequLxt significant

changes in the Montrose Area (including the Centers), is no longer a proper foundation upon

440459s39.noC;2 1 5 copy.

which to review and approve proposed Subdivisions or other developments in the Montrose

ArEa. < . 29. Morcover, upon information and boliet', the Engineer has begm reviewing or soon I will xoview plans for additional proposed Subdivisions within the unimorpaxated ares< of the

County in the Montrose Area.

30. The Developer of one proposed Subdivision has completed a traffiv impact study.

However, that siudy does not assess the impact of the Subdivision on the Montrose Area and

rather s$lf-servingly limits its scopa to Rothrock Road and southern intetohanges rn+ith

Cleveland-Massillon Road while ignoring the obvious implications for the Mania^ose Area.

31. As a. xasult of tl ie failure of the Engineer to require or to conduct a comprehensive

} tCaflic impact study of the Montrose Area, Plaintiffs are suffering signifcant and continuing

injuries to 1?laintiffis' businesses.

32. Plnintiffs' austonters cannot readily access the Centers and experienoe time delays

and other burdens in accessing the Centers due to the traffic in the Montrose Area, all of which

results in prejudice and ltaxm to plain.tiffs' businesses.

. COUNT ONE Mandatory In jrtnction

31. Plaintiffs hereby incorporate by refercnce the alleg,ataotis set forth in the

paragrapx►s a1ovo as if fully rewritten herein, 34. The Engineer and the Commission are required to maintain and promote the

orderly and efficient flow of trairic and pedestrians in, and safe mtd efficient access within, the

County.

35. As a part of these responsibilities, the Engineer and the Commission are charged

to review, assess, and approve of Subdivisions.

{00459639.DOC;2 1 6 COPY-

36. The Engineer and the Conunission, by viitue of its reliance on the Engineer, have

failed to rnaintain and promote the orderly and efficient flow of traffic ar promote safe and

efficiernt access with respect to the Montrase Area and have abused their discretion in neglectittg

these duties.

37. The failure of the Engineer and the Cammissivn, by virtue of its reliance an the

Engineer, to properly arid thoroughly assess the impact of crnmmarcial development in the

Montrose Area on traffic in that ared is arbitrary, unreasonable, andJor uncoimioaiablc.

38. PlaintifcFs have no adcguate remedy at law to prevent infliction of the harm that

has occurred suid will continue to be suffered by Plaintiffs (and others similariy situated) as a

result of the refusal of the Engineer and the Commission, by virtue of its reliance on the

Engineer, to require, review, andlor conduct a comprehensive trafiic impact study for tlte

Montrose Area and, therelore, Plaintiffs ieqnire rclief from this Court.

39. If Defendants are pnjoined to requir4 the carrying out of a comprehensive traffiic

iinpact study for the Montrose Area, no third pattie5 would be unjustifiably harmed because the

issuance of equitable relief would, in fact, benefit tLLird parties wbose safaty, wetfare, and health

otherwise would continue to be harmed if auch a study was not conducted.

40. The issuance of equitahle relief in this matter wauid furthcr the public interest in

providing for the adequate, safe, and efficient flow of t.naffic, aud would benefit and protect the

public's safety, welfare, and heaEth.

41. Based on the foregoing, PEainbiffs 2+re entitled to a maudatary injunction

compelling Dcfendants to carry out the 5urnrnit County Codified Ordinances with respect to the

proper maintenance of traffic within the Caimty and requiring a cvmprehensive traff a impact

study to asscss the current s€ate of traffic And access in, and to recommend improvements to, the

(40459s39.oaC;2 ) 7 CO PY-

eutire Montrose Area in furtherance of the abjectives set forth in Part 1 i of the Sunnmit County

Codified ordinances.

CO>i3NT'TWO Mandamus

42. Plainiiffs hereby incorporate by reference the aliegations set forth in the

paragraphs above as if fully rewritten hcrein.

43. The Summit County Codified Ordinanaes require Defendants to assess the impact

of current and .future development of Subdivisions within the unincorporated areas of the Caunty

on the County, including assessrnents of traffic and proper access to and travel through the

County.

44, Defendants have a clear legal duty to carry out the tnandates of the Summit

County Codified Ordinanr.cs, including Part 11 relating to tlio review and appxoval of

Subdivisious and the objeatives set forth in Part 1 I and the assessrnent of traffia impacted by

Subdivisions and the recluirement of a traffic impact study.

45. Plaintiffs have no adequate remedy in the ordinary course of law with respect to

the Defendants' refusal to carrry out the rxtan.dates of Part 11, including, but not limited to, the

requa.re►ner►t far a traffic impact study. 46. Sased on the foregoing, Plqintiffs are entitled to a writ of mandamus compelling

Aefendants to carry out the mandates of the Summit County Codified Ordinances vvitli respect to

ths proper maintenance of traf^ic within the County and to xeq,uire a oomprehensive traffic

impact study to assess the current state of traffic and access in, and to recommend improvements

to, the entire Montrese AYea in t:artheranee of the objectives set forth in Part 11 of the Sumniit

County Codified Qrdinanae&.

{09459939.D0Q2 ^ ^ COPY_

WHEREPOR$, Plaintiffs demand that a m.andatory injtmotion be issued directing

Defendauts, on Count One of the Complaint, to conduct a comprehensive traffic impact study of

the entire 1vlontrose Area to assess the current status of traffic conditions and opportunities for

future development, if any, based on the current traffic conditians or, in the alternative, that a

peremptory writ of mandamus be issued directing the Defendants, an Count Two of the

Complaint, to cause to be c,anducted a eomgrehensive traffic impact study of the entire Montrose

Area to assess the current status of and oppartunities for fxture development, if any, based on the

current traffic eonditlons. Plaintiffs further demand that they be awarded the costs of this aetion,

their roasvnabte attorneys' fees, and such other relief that this Court deems appropriate.

ti 01 IqA^AA EACH ^K I. V4r(04I0948) LAURA C.1V1C13R1DE (0084059) CALF.EE, HALTER & GRISWOLD LLP 1400 KeyBank Center 80o Superior Avenue Clevelaaad, Ohio 44114-2688 (216) 622-8200 (216) Z41-0516 (fax) [email protected] [email protected]

Altorneys forPlaintiffn

(UOa54934.naC;2} 9 OE1tTIFICATL OF SFRVICE

I hereby certify that a copy of the foregoing Amended G`ninFlairrt was served via gostage- prbpaid U.S. Mail this 116-day of Febraary, 2009, utaon the following;

Susan Baker Ross Assistaiit Pivsecuting Attorney 53 UniversityAvenue, 6th Floor Alaon, Ohio 44308

Attomey for Defendants

t^ One of the Attameys for Plaintiffs

{00459$39.1Dpe:2 } 10 Exhibit 6 COPY

^^^^^^L M, H ^r ^^'x^l 5'^I cflla AuG i 3 ^^ 2., 26 SUWN; T (1Rl^^' VWOURT COMMON PLEAS CLERK OF OF SUM11IIT COUNTY, OHISO •

STATE ex rri. WEST MARKET PLAZA CASE NO. CV 200840.7231 LIMITEi D PARTNERSH[P, et al.

Plaintiff Judge Patricia A. Cosgrove

_^1.^•

GIiM BACI:I1Vi,4N, Summit County ORDEIR Engineer, et al.

Defendant

Pending before the Court are the followsng rnotions: k I. Objections to the decision of the Magistrate filed by Intervcnors LRC Copley Investors, LLC, LRC N! Rothrock Investors, Limited,llQaxhofer fkvelopment Corporation, LLC and Birth Group, L.LC C"Intervenors"}. 1 Motion to consolidate fled by Inteavenors.

Bacit e^n

Plaintiffs West Market Plaza Limited Partnership and Montrose Retail Assoattes

Limited PartnersMp ("Plaintiffs'°) filed this action against Defeitclat3.ts Summit County Engineer

and S.urunit Caunty Planning Commission (Defendants) seeking injunctive ancUor nendarttus

relief compelling Defendant to conduct a "comprehensive traffic impact study oftheentire

Montrose area to assess the cunrent status of and opportunities for future alevelopmmt, if any,

based on-the current traffic conditions."

A dispositive motion schcdule was set and Defendants filed a timely motion 6r

summary judgment. Prior to Plaintiff's response due date for the disposi.tive motionAc parties COPY

notified the Court that a Settlement Agreement had been reached between Plainiiff and

Defendant and the parties submitted a proposed entry for the Court's approval.

The proposed flrder submitted to the Court of the Settlement Agreement is dated

Deceraber 29, 2009 with a"Received" stamp from the Surnmit County Prosecutor's Office.

'ihe signature page of the Settlement Agreement is dated December 18, 2009. A Motion to

intervene was filed on DeceFnher 29, 2009 at 31-15 a.rn, The Motinn to Intervene was filed by

LRC Copley Investors, LLC•, LRC M Rothrock Investors, Limited; Marhofer Developn-&nt

Compauy, LLC; and Birch Cn'oup, LLC collectively referred to as "Intervenors". Plaintiff

fited a brief in opposition to the Motion to Intervene.

A hearing on the Motion to Xntervene was heid before the Court's Magistrate. A

Magistrate's Decision was xssraed wherein tho Ntagistrate denied the Motion to l'nteirvene.

Tartervenors tYIeclObjeciions to the decision of the Magistrate. Plaintiffs filed a Response to the

' Ubjectians. Subsequently, Intcrvenozs Fied a Motion to Consolidate, to which Plairxtiff s fded

a brief in opposition. Plaintiff also filed a Motion to Strike, to which Intervenors filed a briefin

opposition.

In disposing of object3ons, this Court may adopt, reject, or modify the magistrate's

decision, hear additional evidence, recamrnit the matter to the magistrate with instructions, or

hear the xnatter. Civ,R. 53(E)(4Xb). This independexzt, de novo review requaes that as the

ultimate fiutder of fact, this court must make its own factua.l deterrninations through an

independent analysis of the issues and should not adopt the findings of the magistrrnte unless the

trial coiut fully agrees with them. Ininan v. In.man {I995},101 Ohio App.3d 115, 118.

3 Furthermore, this court's role is to deterenine whether the magistrate has properly deterinined

the factual imes and appropriately applied the law. ld. Where the magistrate has #'ailed to do r sa, this court must suhstitute its judgment for that of the m.agistrate. Id. COPY

In the case at bar, this Court has co,rducted a de novo review of the pleadings,

abjections, exhibits and the transcript of the hearing held before the magistrate.

IRotion bo ltr#ervMC

Civ.R. 24 sets fortli the procedure required wh,en filing a rnation to

intervene:

(A) Intervention of right. 1-Tpon tiinely application anyone -sha11 be permitted to intervene in an action: (1) when a statute of this state confm an unconc3itional right to intervene; (2) when the applicant claims an interest relating to the property or transactian that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability ta protect that interest, urdess thc applicant's interest is adequately represented by existing parties. (B) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statuto of this state confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. *** In exercising its discretinn the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the oripna.l pm-ties. (C) Pxocedure. A person desiring to intervene shall serve a rnotion to intervene upon the parties as provided in Rule 5. ne motion shall state the grounds therefore and shaU be accoinpanietl by a pleading setting forth the claiun or defense for which intervention is sought The same procedure shall be followed wheia a staMe of this state gives a right to initmene.

The standard for intervention under Civ.R. 24(A) is as follows:1) the intervenor must

claim an inteL•est relating to the property or t:ransaction that is the subject of action; 2) the

intervenor must be so situated that the disposition of the action may, as a practicai matter,

inipair ar impede the intervenor's ability to protect his or her intexest; 3) the intervenor must

deinons#rafe that his or her interest is not adQquatcly represented by the existing parties; and 4)

the motion to intervene must be tirlte3y. Pete rman v, Vi.lla c oi' Pgdas (1977), 122 Ohio

result in deniat of the App.3d 758. Failure to meet any one of the elements in Civ.R. 24(A) will

rigl.it to intervene. Fairview Gen. iiopp. Pletc r(i 990), 69 Ohio App3d 827. COPY

The tiiheliness of a inotion ta interwene depends upon the facts and circumstances of each case. State ex rel. First New Shiloh Baptist Church: v. Meagher, 82 Ohio St.3d 501, 503, citing Norton v. Sanders (1989), 62 Ohio App.3d 39,42, and.NAACr' v. New York (1973), 413 U.S. 345, 356. The court shouid consider fhe following factors in making the determinataon as to timeliness offhe miotion: "1(1) the point to whioh the suit had progressed; (2) the purpose for which intervention is sought; (3) the Iength of time preceding the application duiing which the proposed intervenor knew or reasonably should have known of his interest in tho case; (4) the prejudice to the original parties due to the proposed intervenar's failure after he knew or reasonably should have known of his interest in the case to appiy promptly for intervention; and (5) the existence of unusual circumstances miiitstuig against or in favor of intervention."' Meagher, 82 Ohio St3d at 503, quoting Triax Co. v. TRW, Inc. (G.A,6,1984), 724 F.2d 1224,1228.

HeiMLy. Godwin, 2004 Ohio 2117.

Intervenors assert that that the Settlcment Agreernent entered into hctween Plaintiffs

and Defendants is much different than the xelief sought in the complaint and that the need for

intervention did not arise until execution of the Sett[ement Agreement. Iiitervenors assert that

the Amended Complaint herein included the demand that the Defendants (entities associated

with the County of Sum.mxt) conduet a'Iraffic Tinpact Study (TIS}. Intervenors assert that the

Settlement Agrcem.ent erltered into between F[aintiM and Defendants imposr;s an unreasonable

burden on Intervenors as derrelope,rs of properLy in that it applies only to the portian of property

where Intervenors property is located, but excludes propmty owned by Plai3nti#1's. Intervenors

further assert that the TIS required by the Se#tlement Agreeinent imposes a significant

roadbloclC to the development of the property owned by Intervenors in Montrose.

At the hearing before the Magistrate, testimony was given by Lawrence Levey on

behali`of the Intervenors. Levey admitted that he had knowledge of this suit and that he was

monitoring the progress of the. suit. TDP pg.108. Levey testified the Amended ConU.plaint

herein imposed the burden of the TIS on the County Defendants and therefore did not aversely

affect Intervenor's interests. Lerrey testified that that the Set#lement Agreement is between his

primary real estate developer competition and the County. Levey further testified that the- COPY .:

Motion to Intervene was filed immediately upon learn3ng that the Settlement A.greernent

imposed the burden of the IIS on Intervenor as tlie developers of property, instead. of the

County. Levey further testified that the Settlement Agreement confained such terims and

requirements related to the TIS tbat it wonld be virtually impossible to ever satisfy the

requiri=ents and therefore difficult, if not impossxble, to develop the land owned by

iatervenors.

The Tviagistrate prohibited testirnony fto3n a Txaffxc Engineer sought to be offercd by

the Iritervenors.

Plaintiffs prosented mo testitnony or evidence in opposition to the motion to intexvene.

Plaintiff did cross-examine Levey and did present arguments to the Magistrate in opposition to II the Motion to >intervene. Defendants presented no argument or evidence in opposition to the

Motion to Intezwene.

In the case at bar, the Amended Complaint makes the demand that the Defendants,

specifically departrnents or divisions within Summit County, conduct a comprehensive traffic

impact study of the entire Montrose area to assess the current s#atus of and opportunifiies for

ftzture devctopm,ent, if any, based on the current traJTw conditions. The Amended Complaint

put the burden oi;'the TIS onto the Defendants. Based on the state of the pleadings prior to the

presentation ofthe Settlement Agreeinent, there was no burden placed upon the Intervenors to

conduct a'I"IS and therefore no reason to attempt to intervene at an earlier stage in the

I Iit:lgdtEorl.

The execution of the Settlement Agreement attempted tv shift the burden of aTIS

impact study away from the Defendants (as was dernanded in the Amended Complaint) and

onto the Intervenors without giving itie Interven.ors thc opportunity to complain or object or

defend. COPY

Therefore, although the Xntervennrs certainly knew about the pending litigation between

Plaiirti#Ts and Defendants, because of the relief requestsd in the Amended Complaint, until thc

execution of the Settlement Agreemant, there was no burden or detriment to the Intervenors.

To put is collo€luially, Intervenors did not ha.ve a dog in this fight undl execution of the

Settlement Agre.ement.

Based on the foregoing, this Court finds that the Motion to Intervene -was timely filed.

As previously stated, in addition to being timely filed, tlZo following eleinents must be

met before a party may intervene: (1) the intcrvenor must claim an interest relating to the

property or transaction that is the subject of the action; (2) the interveaor rnu:;t bc so situated

that the disposition of the action inay, as a practical matter, impair or impede the intervenor's

ability to protect his or her interest; (3) the interverior must demonstrate that his or her interest i is not adequately represented by the existing partie,s; and (4) the motion to intervene must be

1timely filed.

(1) The testimony of Lawrence Levey establishes that the lntervenors claim an interest

relating to the property or transaction that is the subject afthis action. Levey testified that the

Settlernent Agreement places a heightened burden on develepment of propexky owned'by

Intervenors while failing to include property owned by lzlainfLffi. (2) The testimony of Levey ,, establishes that the Intervenors as owners of the property afI'ected by the Settlement Agreement

wnuld impair or impede the ability to commercially develop the property owned by

Intervenors. (3) The testimony of Levey established that the interest of the Intervenors is not

adequately reQresented by the Defendants, Summit County, The attorney for Sumrrdt County

filed no brief in oppositioa to the Motion to Intervene, and made no argumerits at the hearing

on the Motion to Intervene. The interest of the County Defendants diverge dramatically from CO PY

those of the lntervewrs. (4) 'fbe Motion to Tnterwene was tirnely filed as Intervenors had w

dog in this fight until the execution'of tbe Seitlernent Agmcrnent.

After conducting a de novo review, this Court has made the determination through an

independent analysis of the issues and the evidence that the decision of the Magistrate is

Ke,jected. Jntervenaxs Dbjections to the Decision of the Magistrate are well-taken.

Furthermore, hased on the foregoing, the Intervenor's Motion to Interr►ene is well-taken

and is GRANTED.

Motlon to Consolidate

Intcrvenors filed a Motion to consoZidate this case with Case l+do. 2410-04-2939, LRC

Copley Ilxvestors, LLC, et al. v. West Market Plaza Limited. Partnership, et al. pending in Judge i Parker's Court. The 2010 filing consists of Xntervenors filing a complaint for injunctive relief

against both Maintiffi, and Defendants (and other named Defendmits) seeking to enjoin the

parkies from performing under or in accardatpca with the terms of the &ttieinent Agreement or

to the Motion to from taking any action to enforce any of its terrns. A brief in opposition

I Consolidate was filed by the Plaintiffs herein.

Thi,s Court finds that the Motion W Consolidate is well-taken and is GRANTED. Case

Nurnber CV 2010-04-2939 slaall be consolidated into the instant Case Number CV 2008-10-

case number. ,Iny 17231. No further pleadings shall be made under the CV 2014-04-2939

I pteudings made under that case number will be disregarded

Motion for Suminary Judglnent

Fending in this case is a Motion for Sumnriary Judgment filed by Defendant. gased on

the current state of the pleadings, the Court will hold in abeyance the motion for summary

i;iudgment. COPY

At this stage of litigation, the Court wili not approve the Settlement Agreeme.nt. HAving

granted the Motion to Intervene, this Court sets a Status Conference for Annrst 243 2Q10 at

9:30 a.m. Counsel for Plaintiffs, Defendants and Intervenors must be present at the

Status Conference. FaHpre to attend may result in sanctions, including aidverse judgment

or dismissal of claims.

I'he denial of a motion to intcrvene is a final appealabie order. Likover v. Cleveland

(197$), 60 Ohio App.2d 154. In the ca.overse, the granting of a motion to int^,rvene is not a

final and appala.ble order.

IT IS SO 4RUERED.

(9^ a-ow^ .. E PATRICiA A. CO GR VE

CC: ATTORNEY WILLIAM D.DOWi..INCfORVILLE REED A1TORNEY LAIJ1tE4 MCBRIiDEJMARK WALi;ACR

li Exhibit 7 COPY® : DANEL U, 14aRWA

ZI"OSEP -g An6D-21

nv fi>«rr co^ oHIOL^ CLERK OF LoE ^j-r5

S'iATE ex rel. WEST mARxET PLAzA ) 66 1.TNMITEI? PARTNERSHIP et al, ) CASE NO. CV 2008-10-7231 ) P1au^iiEffs, ) JUDGE PATRICIA COSGROVE } v. } ) GREG BACM4AI,I, Summit County ) NOTICE or nIS1VXL5SdL Engineer, et ad,, ) WI7'.l^'F.REJUD11CE ) Defendants. }

Plaintiffs, West Market Plaza Licnil;ed Paztnership and Mantroso Retail Limited

Partnership (collectively `Plairrtiffs'), pursuant to Ohio Civil Rule 41(A)(1)(a) and in

confamance with the terms of the Settlement Agreement between Plaintifl`s and Defendant

Summit County Bngineer, Defeixiant Sumrnit County Planning Commission, and the County of

Summit, entered into on the 18th day vf December, 2009 (a copy of which is attached hereto),

hereby dismiss all claims esserted in this action with prejudice at Ptaintiffs' costs. C •fqc3x9.c 9Mii Z. Vf1ALLACH (0010948) LAURA C. MCBRIDE (0080059) CALFEE, HAI,TER. & GRISWOLD LLP 1400 KeyBank Ceriter 800 SugeFior Avenue Cleveland, Ohio 44114-2688 (216) 622-8200 (216) 622-0816 (facsimile) mwallach@calf'ee.carn lrnebrida@cceffec. carn

Aftomeys for Flaintiffs

(00695454.A0C;3 } 1 COF'Y ^ ^ • _a.

SET')i'LEll+-Ui NT A.GREEMENZ'

This riI.NAL SETT'LEII'tENT AGREEMEIYT (''the Agmernent"`) entered into on this A^Aciay ofe m e v , 20Q9, by and between WEST MARKLT PLAZA LIA+IlT.BI] PARTI`1'MSH4', MONi"ROSB RETa4,iL ASSOCIATES LIMIT ED 1'ARTNFISHl1.', THE SIJMMIT COUNTY ENQlldEER, TfIE SiIMM]`P COUNTY PLANNING COMMISSiON and 'iHB COUNTY OF SUMMIT, OHIO (collect3vely the "Parties').

WHEREAS, in the Cauait.yy of Sumrnit, Chio ^"ttle Comity'), there is a signifcant retail diatrict, in which numerous big^box retailers, snaail and mid-size n;teii oparations, restaurants, movia theaters, and other service providers are looated, known as the Montmse Area. `°Mo^inwa," as used kserei?:n, shall refer to the land and roads that are subject to the County's jurisaliction and that are located within the area reflected on Exhibit A, whicli is attaahed hereto and incorporated herein;

WHEREAS, West Marbt Plm Limited Paxtrtership is a limited pai:trfership creafed on or about thc 29E' day of January, 1985, pursixant to 4hio Revised C.oda t3hapter 17$2 (West Market Plaza'% which owns cert$in commercial properties in Montrose, inalud.ing a shopping center at tha iAter®ection of West Market Street and Cleaeland-.MCassillon Road in the Township ofBat]r, Ohio;

'UPMRRA,6, Montrose Rctail Ass4ciates Limited Partnership is a lEmft:$d paatnership oraated oti or about the 23d day of November, i 494, pursuant to obio Revised Code Chapter 1782 ("Montrose Retait"), which owns certain commercial properties In Moptrosey iaacluding a shoppictg center alsa located at ilie intm-eotion of '9P'cst. Market Street and Clevelaud IvCassilkon Road in the TawnshiP of Bath, Ohio;

WHEREAS, the Siunwut County Eng'vicer (hereinaftor"Eng[neer") is an elected ofEceholder who se¢ves pursaarrt to Chapter 315 of tiae'Ohio Ravised Code and the Summit County C}rdinauees attd who has hss principal place afbusinegs at 538 East Soztth Street in the City of Akwn, County of Summit and the State of Ohio;

WHEREAS, the Summit County Planning Commission (hereinaifter the "Commissxon) is tite Planning Comrrdssion for the County and tinlds its regular and spedal meetings at 175 Soutb Main Street in the City of Akron, Cmmt.y of Sumrnit and the Stnte of Ohio. Surranit County Codified Orclinance §141,01 confew upon the Cornftiission those duties and powers w]sich may be exeroised by a County Planning Conuni.ssion utider the Ohio Ttevised. Code;

WHEREASy the County has an alternative form of county governnzent mthorized by the provisions of §§ 342.41 to 302.24, inciusive, oftho t?iiio Revised Code and has a Charur governtnent pursuant to an election o€the County •voters on November

(00696342.noc;1 ) COPY

6, 1979, and has its principal plwe of busin.u;s locaited at 175 South Main. Street in the City of Aluon, County of Summit and die State o€Obio;

WHERT.4S, on or about the 171h day of Uatober, 2008, West Market Plaza and Montiose Retail initiated a lawsuit against the Engineer and the Commission, captionred West Market Plaza, et, al. v. Bachman, et al,, in the Court of Common Pleas for the County of Stunrnit before Judge Patricia Cosgrove and assigrred Case No. 2008-10-7231 (the "Lawsuit'1,

QVIWREA,4, the Lawsuit sought both a wiit of anandamus and injunctive relie€ directing the Engin.eer and the Convn€ssion to eonduct a comprehensive traffa hnpaet study of the entire NRontrvse area and an awArd of costs, atiarnoy fees and othar damages;

WHERLAS, the objeatives of a traft"ie ir►ipact study are to determjne if the propQsed land use can meet the standards and requirements of the Ohio Departrnent of Transportation {"CDCT") State Highway Access Ilianagemmt IUI$nus! (the "Manual") and o#liec applicable laws and regulataons and to determine the necd for any i7rxprcvements to the aftjaaen.t study wea roadway systan, to maintain a satisfactory level of service and safety, including, but not limited to, signal wmaut analys$s, and to protcct the €unr,tiou of the 6igbway system while pwviding appropriate and necessary socess to a proposed clevelopment; and

WHERIEAS, the Parties now desire to resolve all issues outstartding between them relating to die F awsu#t on the twms and con.ditions sot forth irordn,

NOW THFUp'[11tC, in consideration of the rnutual promises made herein, and for other good and valuable consideration, the receipt and su£#'iciency of wluch are hereby acknowledged by the k'atties, the Parties do hereby agree as follows:

Aue. ne reaitals to this Agreem.etYt m incorporated iterem by reference.

Two. This Agreement does nat require the approval of the Summit Cowty Council and wail be binding upon the County at the time it is exesuted by the gwnmit Conrrty Bxecutive.

TTnree. Aitea the Agreenxent is signed by the Parties, West IlrXarket Plaw and Montrvse Retail agree to dis^s the Lawsuit witl; prejudio and at their cog, and thia Settle.ment Agreement shall be adopted as the Order of tlie Court. Notwithstanding any provision, to the contrary oontained heavin, any Party may assm elaims in law rn equity to cnforGe the temas of Ws Agmement Th.c County, Pngjncet and the Commission agree to cooperate and assist, as may be needed, in the filing of any necessary j4urnal miry,

Four. The Commission andfor the Engineer shall require any person(s) or entity(ies) (the "Deveteper"} sn'bmitting a proposal for any retai} development in the area

(0069E342.ooG;1) COPY ir

def'=d in Exhibit B(a uhnpml") for which the Commission attdlor the l;ngineGr has approvat rights and that sat^#°ies- ' the fol7owing criteria to candecat a'Traffic Impact Study" (which is farther defined in Scobion Six below):

(a) Any proposed retail developmenit that will genexate or is reasonably an#Icipated to generate traffic volutnes equal to or exceeding 100 uow vebicle trip ends (total of entering and exi#1ng vebictes for the proposecl deve[opmept at M buzld out and oecupaucy) during any peak hour of the ckvetopmwt, inaluding the peak hour of generator for both weekdays and weelrerids. A[l calculations wiil be made excluding passby, hernal, or uon-autc trips.

(b) For purposes of this Agrenes,t, traffic counte, vplutnes and gmwtb rates shall be calculated by the most rccent counts or assessments aone by ODOT or the E-aginear, or oalmlated by ODOT or the Biagineer, using the oriteria aud inethodologies contained in the then-cvrrent .Cnstitate of Tiranspurtation Englzieers Trip Genemtfon Report.

{c} For purposes of this Agreentent, a"PYoposaP' ttigge3ing the requireinent for a Traffta Inipact Study ehall not ifiolude a pmposa.[ for a mixed-use dm1opment that contauts some retaEil companent which is ancillary to tho primary land uso unless the retail compament of the ctevelopnaent, in aggregat.a, exceeds 10,000 squai•e fee#.

Notb#ng hecek aha11 proliibit the P-ngineer from requiring a traffic fzrapaot study under any other conditions.

Five. Each Proposal must be accompanied by a"deberrnina.tion of compliance" l3ased on the fteslzolds for a.'frafflc Impact Study set forth in Section Fvur. A final cleterinination of complimce will be subznitted in writing by the Engineer to the County Planning Cornmission or the CDun.ty Subdivision Admi-aistrator #m- adnYinistrative replats not requiring Planning Coir►snission approrral.

84. A Traio h.n;pact Study required under Section Four shall adlm to tha following requirements:

(a) In addition to the following paragraphs, the Traffic Impact Study slrall: (i) aoRfornn to tlze objeatives set forth in tho Manual, and specifically Seetions 5.2,2, 5.3, and Sections 5.6.2-5.6.10; (ii) employ the methods as set forth in the Instttute of Transportation Engianeers T:rfp Generation Report; and (tii) conform to the "County of Summit Engineer Cmstmotion and Ma#erial Speaificatiam and Stmdard T]etails, (COSE Speas. And Aetaiks), Dats R.evised 315103 or the most current edition of the COSE Spwo and Details Manual.

(b) The rninhnurn geographical study area to be analyzed in the Traffia ImpaQt Study sball begin with the Proposal's site aecess drives, Adjaaent roadways and int,er$ections which fall uvitl►in Montrose (as defined in Bxhibit A), and ext=ding

180698342ooC;! j COPYdo

outward from the Proposal site to the fiist existing iniuisection with .^t current nunbered stato bighway route in each direction, irmluding Intergtate interolYanges and juu.ations (excluding any facilities to be dedicated as part of the development) at which the Proposal creates a "Minimal i7egisdation," as ihat torm ia defmed below,

"Nfinlrraal begradatlon" shall mean ahamges in the levei of service (wheit coiqaning existing to "opening year" oandifiions) that satisfy bo(h of the following criter€a:

(1) Degradation resulting in a change of no more than one frall letter grade in the caiculated level of sarvice n£ (A) such roadway netwoxk facility as a whole; or (B) individual intersection approaCm at sIgn.edized intCxsBQtaons and/or rptandabOut,S and individual tur,ting mvvements at un.signaliaed intersections. Iu order to assess tWe caiteda, the level of service of a roadway network facility, approaoh, roundabout and/or turning movem.errt shall be first caicuiated by the Developer, and then reviewed and approved by ODOT or tlie Bngineer. Tha criteria and metliodologies set forth in tha then- eu.rrent edition vf the Highway Caps

(2) pegradation resulting in a change in any af thc followir& as a.ppropriate: (A) the exis6ng average delay experienced by motrkxists of no aiare than an average of fvo (5) seconds per vehicle trip for individual intersection approache^ and/or ovvrall %ntersee#ion delay at signalized intersedions and/or inAndabouts and individual w,ning movements at unsignatized intersections; (B) a change of no rnox$ tlm five (5) percent In the `°peroent time foilnwing" of two -lane xfladways; or (C) a change in the ntaximum density of no more than five (5) passenger cars per xnile per lane ibr =lti-lao.e highways, freeway segments, weaving areas, and freeway mergeldivage areas. The appiicable ariteria (average delay, peraont kim$ follawing, density) exporienced by motorists will also be determiued by reference to the Highway Capaeity Manuall and ca(ctilated by the criteria and methodologies cotitainec! thnirj. The delay will be calculated upon the road feature(s) being traversed and w#il continue in an outward clirwtion from the Proposal $ite,

Notbing herein shalt prohibit or ot]terwise [imit the authority of the Engineer or PlaQning Commission front imposing a traffic siudy under otlzer conditions or imposing an upwat-d adjustmont to the seope of any tmf£ic swdy.

(c) The Traffic Impact Stud.y shall explxcatly co"claer other aplyroved developtnents within ibiontrose, induding, but not limited to, properties with apprDved siteplan.s with'sby riot" development density;

(d) The site generatcd trip disErilru.tion shall be determined through an evaluation of one or more of the foltowlr►g: existing trafBe oaunts; census or population data adjttst$d for distanoe and fraqaency of trips; nraui€eting inbxrraatiou or studies; or regional planning uYodcls. The distribution a.nalysls shall aceount for the anticipated

(00698342-UOC;1 ) COPYd

market a.rea as defined tbroug$ prafessional pub3ications or specific infomation provided by the T7evelaper. Separate distributioii$. shali be prepared £or both weelcday andlor weekend conditions, if appropriate.

(e) Diverted fink trips are drawn from a nearby roadway whife pass-by trip reductions consider site trips drawn fi-om tlxe• existing tra.ffta strearn on an adjacelat strw with direct site access. For analysis purposes, divetted trips shall be coiiservatively assurned as new trips. Pass-by trips shall be ealculiatect and applied nsirxg the pxocedure in the latest edition of the iaistitute of'Irarisportation FARgiaQers ffindlxook.

(o The Txafria Irnpact Study shaU examine build a»d no-lauild conditions for both opening day and design year scenarios using standard capacity anaIysis procedures reaonmended by ODOT; and,

(g) The Traiflc Innpact Study sWl idcntify tlto means by which "adaquate" access and traffic flow shql[ be maintained under the Proposal. "Adequate" access and traffia flow uadcr the condt'tions oxeated by the Proposal slnall be defined as tize higaer standard ofeitba•. (A) levels ofseMoe for the applicable overall lnterseetiom, Individual lane groups, roadway links aad mergcldivergefweaving ateas within ODOT a,s#abliAM standards; or (B) lcvols of service tliat result in no degradation of the existing levels of service for the applicabie overall intersections, individual Iane groups and roadway linlcs,

Seven. The costs of a'I'raffic Yrnpact Study required by tliis Agreement shall bo borne by the Developer.

Efgltt. The Commission and the Bngineer nnay also request additional, supplomental or site spaoifia trAffic stu dies, in any number asid any quantaty as they may deem appropriato and neoassary. Fukta, not6ing herein will prohibit any Party or entity witJz legal s#anding from challenging the stady, its scope and its oonclusions.

Niae. The Dngineer will establisb a protocol and procedure for xeview of a Traffia lmpaot Study, wlxiclt may inolude pracedure$ for subanittal and review of such studie,s, contact and consultation wit3i the local commuity officials and propexty owners, ODOT, or other traffic regulators, land use plmmers, Iegal counsel and any otlier person or entity the Enginew deems appropriate to assist in the rerriow and analysis of the Traf.fsc lmpact Study.

Ten. The Engineer and the Comniasion ,shall rQquire the Developer to use one of the consu]ting firnis deemed qualWed to parfonn land use development tra#flo impact studies, a curr®nt list of whom is attaohed as Exhibit C. A qualifled consultant shal] bq an engineering flrm pr"ctalifieti by the ODOT at the t,ane of thc study in Wl four (4) of lbe following categoxies: Complex Roadway Deeigr►, Interchange JnstificatioWll+todification Study, Safety Study Design and Signal System Dedgn. It shall be the responsibility of the Developei- to selm and ae=lre the services, subject to the approval of the Engineer, of the pra-qualified ODOT traffic engineer or consultant to perfnrra the required traffic inxpad study.

W9699342.aoc0 ) COPY

;. ,

Eleven. The Parties aakmowledga that the governmental entities havby reserve and retain their disGretion, as provided for by law, to intposo or not impose eQnditiolm subject to their lawful authority, except as required by the terms of this Agreqnent.

x"weCve. Tbi.s• A,greeanent may be executed by facsimile andlor in counterparts and wiil tako effeat when all parkies have signed a copy of it. This Agreement will be construed in aecordance with the plain meaning of its language and neithw for nor against the drafting party.

Thirtem. The PaWes acknowledge that this Agreernent descifhes the entirety of tlieir agreement; that, they naderstand this to be a final and coinpleto sett>;ement of all of their rights against r,a.oh other with respect to the aforemeattionecl ruattea, atid the aforementioned Litigation; and that their execution hereof is knade of tbeu own fteo wil] aiid desir% wRb the advice and approval of Qlmir attarneys, and witlt the fdl legislative and full corporate aathorization nemsary to act in confarrnity berewith; and that they have fbfl legal authority and capacity to bbid their respective enti#ies to ##Se terms, coWitions and promism contained in this Agreement,

(Signatm page fflilows]

{00698342.DOC;[ } COPY

Iri!'WrrNLSS WHET&QF, we havo hereunto set our hands on this &A day of ALEM^ee , 2009.

WEST MARKET PIAZA LINIITE# PARTNERw4W

YVIUNTRASE RETAIL ASSOCIA,'X`XS LXMITED PA[tTIVERSHIP

k. ^ ^ t^t^1r^ ^►e^^^^

ColU^'^'^t' oF T

se]I . ry, Summ t Couniy Executive 97t

SU CD NGINEER

AiaiiBrub er, Summit Cauuty ' eer

SUMMIT CUTINTY PLANNING CUMNIMSX4N

Alleu ^vrP es, Ch^3^aII ui't^ ^`umrni# County Planning Cammisaion

€OOG38342 Q4G;l ) COPY

r > ^ ^OP,i COPY,r '-.

CERTIFYCATE OF SERVICE

I hrreby certify that a tru$ and genuine copy of llTottce of Dismissal with Prejudice was

sel ved via regular U.S. mail this 55day of Septernbor, 2010, upon:

Marvin Evans Assistant Prosecuting Attorney 53 University Avenue, 6th FLgor Aliron, Ohio 44308 - fjttoi'J1fiyfOP D8f8TPdatlt8

Wi3lzam D. ]]owI;•ng. Buckingham, Doalittle & Burroughs, LLP 384D Embassy Partcvvay, Suite 300 Akron, Ohio 44333 1lttorri:eys, fQrIntervehors

^^• Qne nf the Attorneys ^r Plaintiffs

(00893454.DDC;E } 2 Exhibit 8 op 1

f ^ .

IA1 'l`HE COURT OF CQM NIOAI PLEAS SUMMIT COUNTY F 0z110

WEST MA.RKET PLAZA LIMITED PARTNERSHIP 1350 West 3rd Strcet Clevelaa3d, OH 44113, CASE NO. 2011 11 62$6

and JUDGE MARY MARGARET ROWLANDB MONTROSE RETAIL ASSOCIATES LIIvIITET) PARTNERSHEP 1350 West 3rd Street Cleveland, OH 44113,

Plaintiffs,

SL3MNIY`f COUNTY PLANNING COMMISSION Summit Cty. I)ept. of Devetopmcnt, Planning Div. 175 S. Main Street, Room 207 A[cros7 , OH 44308, COMPLAINT

and

RTJSSELL IV[.1'RY I _ Summit County Executive 175 S. Main St., Sth Floor r- Akrnn, OH 44308-1314, ^. ^^ ... r__..

and

ALAN BRUBAKER `' Sunvnit Couiity Engineer ^:.^ 538 B. South Strex:t Akron, OH 4431 X -1843,

37efendants,

j0130C48.D0C;4 } • L

# -. Y

Pd &RArrQ

1. Plaintiff, West Market Plaza Limited Partnership, is an Ohio limited padnership

with a principal plaae of 6usi-sess in Bath Township, Ohio. West Market Plaza Limited

Partnership owns and operates a shopping ceriter at the intersection of Wo.st Market St. and

Clcveland-Massillon Road in Summit County, Ohio (the "County") and is a County taxpayer.

2. Plaintiff, Montrose Rolail Associates Limited Partnership, is an Ohio limited

partnership with a principal place of business also in 13ath Township, Ohio. Montrflse Retaik

Associates l:,inaitec! Partnership owns and opera.tes another shopping center at the intersection of

West Market St, and Clcveland-Massillon Road in the County, mid is a County taxpayer.

3. Plaintiffs, West Market Plaza Limited Partnership and Montrose Retail Associates

Limited Partnership, shafi he collectively referred to herein as "Plaintiffs,"

4. Def=dan.t, Summit County Plaming Commission (thc "Cotuity Planning

Commission"), is the Planning Commissioji for the County and is located at 175 S. Main Street,

Room 207, Akron, Ohio 44308. Thhc Coznmissian was estab[ished pursuant to Ohio Revised

Code § 713,22 and is charged to "exercise the powers and duties established by general law."

Surnmit County Codified Ordinance, § 141.01.

5. Defendant, Russe11M. Pry, is the County 1Jxecutive for the County (the "County

Fatecutive"), tocated at 175 S. Main Street, 8th Floor, Akron, Ohio 44308. "Ctie County

Execufave is the chief cxecutive officer for the Co€unty, who serves the County pursuant to

Artielc 9 of the Cflunty Charter and Ohio Revised Code Chapter 302.

6, Defendant, Alan Brubaker, is the County Engineer for the County (the "County

Engineer"), located at 538 E. South St., Akron, Ohio 44311, The Engineer serves the County

pursuant to Ohio Revised Code § 315 and the -Surnmit County Codified ardinances.

101304048.DqC;-0 ) 2 y .

4 ,• ..

7. The County Executive, the County Planning Commissioa and the County

Engineer shall be referred to herein collectively as the "County Officials."

S. This action is properly brought before this Court pursuant to Section 4, Article Ij!

of the Ohio Constitution and Ohio Rule of Civil Procedure 3(B).

INTRODUCTION

9. Plaintiffs regretfully come back to tbe Court in an effort to require Summit

County to do that which it is now flagrantly and recklessly avoiding - tho oversight of the

developrnent of a massive retail center in a vital, congestect, and sensitive unincorporated area of

the County.

10. Summit County°s responsihility for such oversight is clearly provided for by the

County's "Subdivision Regulations," which are set forth in Part 11 of the Summit County

Codified Ordinances (the "Ordinances').

11. The Subdivision Regulations establish specific procedures for tho County's

review and approval of certain large developments in the unincorparated areas of the County.

12. One of the major thrusts of the County's oversight responsibility under the

County Officials' broader statutory responsibilities and under tlie Subdivision R.egulations is to

ensure the proper flow of traffic within the Caunty and to maintain the health, safety and welfare

of the County's residents and bttsinesses.

13. As 6usiness owners hi the Montrose Area, Plaintiffs have a direct interest in

traffie iii, and the hea.lth, safety and welfarv ol'the public tmvelling to and through, the lviantrose

Area.

013014048"C>4 1 3 ..,.

14. Plaintiffs' concerns in this regard were aroused in 2008, when it became known

that the Developers sought to develop the Property into two nnassive retail superstores in the

already-congested Montrose Area.

15. Thelr concerns wcre furthered when it became clear that the then-County

Engirieer intended to rely on a 1989 traffic study of the area to guide the County's review of the

Proposed Developmcnt_

16. 7n order to protect their interests and to ensure the County's appropriate review of

traftic in the Montrose Arca, Plaintif£s tiled suit against the Planning Commission and the

County Engineer.

17. After extended discussions between Plaintiffs, on the ona hand, and the planning

Commission and the new (aard current) County Engineer, on the other hand, the parties ageed

that, in particular, large devclopments in, tho Montrose Area warranted a new and broad traffic

study to guide development decisions.

18. The parties' a.greement and the scope of the nccessary traffic study was

rnemtarialized in a Accernber 2009 written Settlement Agrecment, executed by the County

Engineet', the Gounty Planning Commission, and the County L;xeoEitive.

19. The Settlement Agreement dacwnents the County Officials° express assurances

that they liad the authority to executa tiZe Settlement Agreement and would enforce it when either

the County Planning Commission or the Caunty Engineer had approval rights regarding a

proposed development of a certain size.

241. Therea#tef', the Developers' plan for the Proposed Development progressed,

including the submission of an application for a zoning certificate from Copley Township tmd

the County Engineer's associated approval.

10 1304048.110C;4; 4 ^• .

21. ln September 2010, the County Engineer informed the County Planning

Commissi4n that he found the Proposed Development to be e Major Subdivision and worthy of

the County's leadership role:

This development is of regional significance and should be reviewcsl aricl regulatod by rules and regulations of the Summit Cou.rety Planning Commission in addition to the rules and regulations of Copley Township. It is the concern of this oFt;Go that without the involvement of Summit County that the improvements to the roadways and intersections in the area needed to prevent traffic delays, increased traffic accidents and delayed response time for emergency responders may not be adequately provided.

22, However, rccent events have revealed that the County Engineer has breached the

Settlexnent Agreement and seemingly backtracked on his previous cominitments regaiding the

need for the approval as a Major Subdivision - and that Plaintiffs' concerns that the County is

seeking to circumvent the Setticment Agrecment, the Subdivision Regulations mid common

sense in the approval of the massive Proposed Development are becoming a reality.

THE C4L3lVT3l'S ROLE IN OVERSEEING THX DEVELOPMENT OF SUBDIVISI4lYS

23. The County has adopted regulations for the review and approval of subdivisions,

which regulations-are set forth in Part l i of the Ordinances (the "Subdivision Regulations"). See

SCCO § 1101.03.

24, The Subdivision Regulations are administered by the Planning Commission, thc

County Engineer, and/or the County Executive.

25. The Subdivision Regulations are applicable to all subdivisions of land located

within the unincorporated area of the County. SCCO § 1101.03.

26. Subdivisions Fncleuie, in pertinent part, "the impr^ovement o.fone or rnoro parcels

of land for residential, commercial, or industrial structures or groups of structuies involving the

(a13{14048.D0C;! ) 5 ..;

division or allocation of land for the opening, widening, or extension of aary street or streets...;

the division or allocation of land as open spaces for common use by owners, occupants or Iease

holders or as easements for the extension and maintenance of public sewer, water, storm

drainage, or other putslia facilities ...," SCCO § 1102.03(a)(97)(H).

27. The SCCO explicitly provide that the County seeks "to sccure and provide for

Summit County'> a numbcr of objectives in enacting the $ubdivision Regulations, including:

"[t]he proper arrangment of streets or highways in relation 'to existing or proposed streets and

highways and the thoroughfare plan;" "[ajdequate and eonvenient open spaces foT trsLffic,

utilities, access for fire-fighting apparatus, recreation, light and airk and the avoidance of

congestion of the population;" "[t]he orderly, efficient, and appropriate developrnent of land;"

"[s]afe and convenient vehicular and pedestrian movernent;" "[t]he promotion of prtbtic health,

safety, comfort, convenicncey prosperity, and general welfare, and the protection of the

environment;" and "[tlhe equitable handling of all subdivision plats by providing uniform

procedures and standards for observance by both the approving authority and Develap" as

defined [in Part I l]." SCCO § 110 1,02,

28. The County also requires that the Subdivision Regulations "shall be broadly

construed and intarpreted so as to achieve their essential purposes." SCCO § 1101.06.

29. To fulfill the Cotinty's objectives, the County subjects both Major and Minor

Subdivisions, as dcfined in § 1101.02, to specific review procedures.

30. Major Subdivisions are dehnod as "[a]ll Subdivisxons not classificd as a Minor

Subdivision, including but not limited to Subdivisions of more than five (5) lots, any one of

which is Iess than five (5) acres, or any size Subdivision requiring the cieation, widening or

extensioii of a street or access easement or requiring the division or alEacation of land as a utility

{p13M4A.O00,4 1 6 <,, ..

or drainage easement or subdividing platted land to create additional buildiug lots in a recorded

Subdivision.°' SCCO § 1102.03(a)(94).

31. Minor Subdivisions are defined as a"Subdivision which is a division of a parcel

of land along an existing public street or road, not involving the opening, widening, or extension

ot' any street, road, or access easement and i-nvoivirg not more than five (5) lots, any one of

which may be less than five (5) acres after the original tract has been complotely subdivided."

SCCO § 1142.03(a)(100).

32. The "County Planning Comn.aission shall detersnine that apropqsed subdivision of

1au.d is a Major Subdivision if it...[is] any size Subdivisioii rc:quiring the creation, widening or

extension of a street or access ea:sement or requiring the division or allocation of land as a utility

or drainage easemerrt or is subdividing platted land to create additional building lots in a

xeCOrded Subdivision." SCCO § 1103.03(b).

33. The Subdivision Regulations' requirements for approval of Major Subdivisions

includes numerous required timelines and submittals by a€Ieveloper seeking approval of a Major

Subdivision across four stages, befare approval of the Final Plat<

34. For example, as a part of the reraiew of Major Subdivisions, the County Sng►neer

reviews and issile$ recomrntendations within the County Enginee,''s scope of responsibilities,

including traffic and access management, for the approval of all plans for Subdivisions. See

SCCO § 1] 03.01 et seq.

35. Traffic Impact Studies also are required by the County Engineer for Subdivisions

that have access off of County roads to "evaluate the effect of Subdivision traffic with regard to

acccss rtnanagement along the frontage of County Roads and adjacent intersectians[,1 and address

what type ot't.rafic improvements ... will be required." SCCO § I108.04.

(013040481?4Q4 .; 7 36. The Subclivision Regulations grant the County Bngineer discretian to require a tra.ffo impact study and, if required, to determine the scope of the required traffie inipact study, regardless of whcther a proposed development is simply a Subdivision or a Ma1or Subdivision,

THF, PROPOSED DEVELOPMENT WOULD BE LOCATED IN THE MONTROSE AREA

37. The County is best suited to take th$ leading role in oversight of the development of tlle Montrose Area, as evidenced by its statutory and regulatory authority, including the authority granted in the Subdivision Regulations.

3$. The iVlontrose Area is located at or near the intersection of CIeveland-lViassillon.

Road and West Market Street in the County.

39. Property located on the north side af West Market Street falls, for the most part, in Bath Township.

40. Property located on the south side of West Market Street and east of Cleveland-

Massillon Road falls rvithiri tlye City of psi.rlawn.

41. Property located on the south side of West market street and west of Cleveland-

Massillon Raad (including the properiy un whseh the Proposed Deveioprnent is planned) falls, for the most part, in Copley Townsh[p.

42, Therefore, none of thcse three gaveniroental entities have jurisdiction or oversight over, or can efl'ectively coor€iinate the development of the Mon"se Area as a whole.

43. Accordingly, County-lcvel oversight is needed.

44. The Proposed ]?cvclopment is particularly illustrativo of this issue and tho need

for Cou.nty-level oversight.

45, The Proposed Developmeut would be located o-n property that falls witirin Copley

Townslrip, but is separated froin the rennainder of Copley Township by interstate 77..

jo1304048.00C;4 1 8 A. •

46. Thercfore, the impact of the Proposed Development would fall more signlficantly

on Bath Township and the City of Fairlawn, neither of which have authurity to review or

approve the Proposed Development or adequately protect their residents' interests.

'I`HE FARTYCULAR CONCER.NS REGARDING TRAFFIC IN THE MONTROSE AREA

47. The Montrose Area has become a sigrrifioant retail district within the County in

which nuinerous big-box retaiicrs, srnall and mid-size retail operations, restaura-nts, movie

theaters, and otlier service providers are locatecl, ineluding cominercial properties owned by

Plaintiffs,

48. Over the past 10-15 years, developrr►ent in the Montrose Area has drastically

increased.

49. Accordingly, the Montrose Area has been increasingly burdened in the fozm of

significant tiaffic oongestion on County, City of Fairlawn, State, and Interstdte thoroughfares -

all of which convcrge in the Montrose Area.

50. Because of the convergence of numerous major thoroughfares in the Mantrose

Area and the significant commercial developments located there, traffic in the Mo-ntrvse Area

has beett and remains a particularly significant aiid troulrlesome issue.

51. 'IYaflic and congestian in the Montresse Area afFects the health, safety, and vvelfare

of County residents and others who travel to and through the Montrose Area.

52. Traffic aiid congestion in the Monirosc Area also a.ffect the numerous commercial

interests that already havc been established in the Montrose Area.

53, In or around October 2008, the Developer's interest in developing the Rothrock

Road propetty for a Wal-Mart Super Store hecame known in the community.

(01304048.n0C;4; 9 .., ,

54. At that time, the Developer had completed a traffic impact study that did not

asscss the impaet of the Proposed Development on the Montrose Area, but mther was linaited in

scope primarily to the traffic impact on R,athrock Road and its intersectian with Cleveland-

i11lassilEon Road. Notably, the effects on West Market Street (State Routc 18) and two

interchanges with Intcrstate 77 were not studied.

55. Plaintiffs and otlier similarly situated business and property owners, all of whom

are taxpayers, will suffer signii'icant disruptions in their businesses if the Prnposed Development

is constructed without the County's review and assessment of the impact of thu Proposed

Development on #raf'fie in the entire Montrose Area,

56. The general public also will suffer disrtiptiona in aocess if the Proposed

Development is constructed without lhe County's review and assessment of the impact of the

Proposed Development on traffic in the entire Montrose Area.

57. As of 2008, neither the County Engineer nor the County Planning Commission

had sought an evaluation of the traffic issues and challenges associated with the Montrose Area

for several decades.

58. The County Engincer and the Coz►niy Planning CozpEnission were relying on a

19$9 study rorr,rnissioned by thc Aluoa Metropolitan Area Transit Authority, which was

completely outdated mid irrelevant because of the subsequent significant development of and

changes to the Montrose Area.

59. In vt' around October 2008, Plaintiffs filed suit in this Court against the County

Planning Commission and the County Engineer xeg,arding their abuse of discretion in failing to

adequately oversee and plan for traffic congestion in the Montrose Area generally, and failing to

gerform a traffic study of the Montrose Area.

;ol]i]4046.a0C;4 j 10 60, After prolonged litigation atid protracted discussions, the County Planuing

Cornmission, the County Engineer and the County Executive agreed to and executed a

Settleriment Agreernent with the Plaintn.

51. The Settlement Agreement, a capy of which is attached liereta as Exhibit 1, reflects thc County Piauning Comniission's, the County Engineer's, and Ehe County Executive's ageemont that dcvelopntents of a certain size that wero subject to the County's jurisdiction and that were located in the Nlantrdse Area warranted a traffic impact study with a defined scope.

62. More specifically, the County planning Commission, the County EngineerT and the County Executive agreed that• such a traffic impact study was appropriate aiad would be required for "[a]ny proposed retail devciopmettt" that is reasonably anticipated to generate 100 new veliicle trips during any peak hour of the development. Agreement,14.

63. For such signilxcant developfnents, the County Planning Comnaission, the County

Engineex, and the County E'xecutive agraed that a traffic impact study meeting certain criteria

(the "Agreed Traffic Irnpact Study") would be required prior the issuance of any approvals for new developinents.

64. The County Planning Commission, the Count.y Enginecr, and the County

Executive ag=d that the Agreed Traffic Impact Study would evaluate the proposed dcvolopment's impact oix trafiric from the site of the proposed development outward to the fimt existing intersection iri each direction at which only a minimal degradation in traffic is anticipated

65. The Settlement Agrcemeiit provides that it will be binding upon the County at the time it is executed by the County Exeautive. Agreement, 112.

ta1304o4s.€)oC;a 1 11 k° a i.

66. The County Executive exer.uted the Settlement Agreemsnt on or amund

Deaernber 18, 2009.

67. Th4 County Planning Consmission, the County Engineer, and the Plaintiffs also

executcd tltc Set.tlernent Agmement on or around DecernbeF 18, 2009.

1tECENT DEVELOPMENTS

68. Theacafter, the Developers' plan for the Proposed Development solidified.

69- In or a.roneid. April 2009, the Devvelopers submitted an application for a zoning

certificate from Copley Township, to develop approximately 40 acres of currently undeveloped

land for tlic conistruction of the Proposed Devel,opment, which includes a'VVal-Mart Super Store,

a Sam's Club warehouse store, and a gas station.

70. ThQ l:h•oposed Development represents the exact type of developnrent that the

Settlement Agreement was intended to address and for which the Agreecl TrafEc lrrEpact Study

would be ruquired, due to its potential irnpact on the Montrosc Area.

71. The Proposed aevelopment also falls squarely within the definition of a "major

subdivision" iuidelr the Subdivision Regulations.

72. Tlie Proposed Developrnent involves the construction of approxirnately 288,000

square feet witli over 1400 parking spaces.

73. The Proposed Development invotvcs at least one parcel that is less than five (5)

acres.

74, The Proposed Development involves the allocation of land for the widening of a

s€reet, Rothrock Roa(i.

75. The, Proposed Development allocates land as an easexiaent for the extension and

mainicnanco of public server, water, and stor,nn drainage.

{01304048.DOC;4 } 12 ,.^. •

76. The Proposed Development also allocates land as open spaces for cornnton use by

owncrs, occupants or lease holders.

77. As a part of Copley Township's revxe'w proccss, the Towmhip requested the

County Engineer's approval of the Proposed Development.

78. In eonacctian with thc zoni-ng application aiid the County Engineer's review of

the 1'roposed Development, the Dcvetopers prepared a traffic impact study canducted by URS

Corporation (the "URS Stud)").

79. The Developers submitted the DRS Study to the County Engineer for approval in

or around June 2011.

80. Upon information and belief, the Co-unty Enginm then zeviewed ths CJ'RS Study

and submitted suggested revisions to the Developers.

81. The Developers then submitted an August 1, 2011 "Addendum #1" to the U12S

Study.

82. Neitlier the June 2011 URS Study nor its Addendum #1 corEsidered the impact of

ths Proposed Development on traffic at the intersection of West Market Street and Cleveiand-

1Vlassillon RDaEd.

83. Neither the June 2011 URS 5tudy nor its Addendum #I considered the impact of

the Proposed Dcvelaprnent on weekend trafiac, in that the studies excluded weekend tral7Eic

counts.

84. Further, neither the June 2011 URS Study nor its Addendum #1 cansidered the

irupact of ttie Proposed Development given the curTent clostlre of Roselnont 13ouleva rd and the

impending olosure of Rothmck Road in the City of Fairlawn.

01304448.pQC;d 1 13 4. 4 •

85. On October 18, 2011, the County Engineer sent a letter to Copley Township

stating that: "Providitig that tlie final development agreement, as reviewed by this office,

continues to satisfy flie above noted conditions, this letter will serve as our approval and

accepfance o#'tlte [URS Study],"

86. Inexplicably, the County Engineer's "approval" of the URS Study was issued to

Copley Township on October 18, 2011-- two weeks after Sudge McCarty in the Sum.mit County

Court of Common Plcas, in the rclated Case No. CV 2011-08-4237, noted that a contplicating

factor in the impacted communities' decisiou-makirtg proceas is that "the Summst County

Ertgineer has not contemplated or consideted a tra.f!"ic ptart or any infrastructure improve,raent

that incorporates Fairlawn's closure ofRothrock Road.•,

87, A true and accurate copy of the County Engineer`s October 18, 2011 letter (the

"Engineer's Letter") is attached hereto as Exhibit 2.

88, The URS Study, inc(uding its Addendum, is not an Agreed Traffic Impact 5tc.dy

with the scope set forth iri the Settleinent Agreennent_

89. Plaintiffs ltave repeatedly demanded that the County Planning Cotnmission, the

County Eng€neer and the County Fsxecutive requira the Developers to prepare and submit the

Agreed Traffic lrnpact Study for the Proposed Development, including via correspondence on

November 3, 2010,1►rlarch 14, 2011, April 20, 2011, and August 4, 2€111. 90. However, neither the County Platming Commission, the County &tginecr, nor the

County Executive has required, as of the date of this Petitivn, the Developer to prcpare the

Agreed Traffic lmpact Study for the Proposed Develoirment.

i*41304448.DCCA 1 14 , .

91. To the contrary, the County >~ngineer has recently approved tha URS Study in

conneGtioia with the Propoaed Development, which does not include the scope of the Agreed

Traffic bnipact Study.

COUNT ONE Breach of the isettlement Agreement -- Speciiic Performance

92. Piaintiffs liereby incorporate by ►-eference the allegations set forth in the

paragraphs above as if fully rewritien herein.

93, The Settletnent Agreement requirus the Couniy Planning Commission and/or the

County Engineer to require the Developers to prcpare and submit an Agreed Traffic Impact

Study prior to any approval of the Proposed Development.

94. The 1'roposed Development is a proposed retail developmerit.

95. The Proposed Development falls within the area defined in F3xllibit B to the

Settloinent Agreeinent.

96. The Proposed Development is reasonably anticipated to generatc tOO vehiclc trip

ends during any peak hour of the Proposed Development.

97. The County Engineer recently approved the Developers' URS Study, whioh is not

an Agreed Traffic Impact Study of the scope set farth in the Settlement Agreement.

98. The size af the Proposed Development and the County Engineer's approval of the

URS Study triggered the obligation to require an Agreed Traffic Impact Study.

99. The County Engineer has breached the Settlement Agx'eament by failing to require

the Developers to prepare a tiraffic ezxVact study that adheres to the scope of the Agreed 'l'ra.ffic

Impact Study.

{OL304048.f1OC;4 :i: 15 4.

140. 1ti'lainti.€fs have no adequate remedy in the ordinary course of law with respect to

the County Planning Commission's and/or the County Eiigineer's refusal to carry out the

requ.iremerits of the Settlcment Agreement.

101. Based on the foregoirtg, Plaintiffs are entitled to specific performance compelling

the County Engineer and!ox the other County Offi.cials to carry out the tercns of the Settlement

Agreement by requiring the Developers to conduct and stihmit the Agreed Traffic T.mpac.t. Study

for the Engineer's review.

102. Plaintiffs are also ewitled to a mandatory injunction, requiring the County

Qfrcials to enforca tlte terrrss of the Settlement Agreement and to require the Davelopers to

perform the Agreed 1`ra,ffic Impact Stutly.

VJHEREFORE, Plaintiffs deutand:

a) That a judgrnent be issued in Ptainti#Ts' favor on Count One;

b) That specific Perforruanc-c be granted on Co-ant tlne, to enforco thc ter.rrrs of the Settlement Agreement agreed ta by the County Planning Commission, the County F-ngineer and the County Executivc for the requiremcat of an Agreed Trafla'c Impact Study of the scope sct forth in the Scttlemet,t Agoement prior to approval of the Proposed Developmen#;

c) 'fhat a mandatory injunction hc issued on Count One, to enforce the terms of the Settlemmt Agroennent agreed to by the County Planning Coinmission, the County Enginew and the County Executive for the requirement of an Agrced Traffic IFnpact Study of the scope set forth in the Settlernmt Agreennent prior to approval of the Proposed Development;

d) An awarcl of their costs of this aetion and their reasonable attorneys' fees; and,

e) Such other. relief that this Court deems appropriake,

j01304oa8.n0c;4 t 16 ^. ` .i ` LAaCAc^ .^ . . I. WALLACH (0E310948) LAURA C. MCBRIDI? (0084059) CALFFE, HALTER & GRISWOLD LLP 1400 KeyPank Cerrter 800 Superior Avenue Cleveland, Ohio 44114-26$$ (216) 522-8200 (216) 241-0816 (fax) mwall$eWcaifee.comm Irncbride[a;cOfee.com

Attorneys for Plai-ntil'fs West Market Plaza I,imited Partnership and Montrose Retail. Associates Liniited Partnership

{oI304aa9.0oC;4 I 17 Exhibit 9 ^^^^h^4IT C1^,JN4^^5 IN THE COLJRT OF COMMON PL.EAS;jfRK OF ^ SUMMIT COUNTY, OHIO

NF..ST MARKB't' PLAZA LIMITED ) CASF, NO. CV 2008-I0-7231 ► PAItTNFRSHIP et al., ) (Consolidated with Case rlo. 2011-11-6286) } PlaintiM, } ) JEJDUE ALISON 1<+iCCARTSI V. ) } SUMMIT COUNTY PLANNING } PLAINFS' MOTiON FOR CC)MM[SSION, et al. } SUMNARY JUDGMEN't' } Defendants. ) )

Retail Assaciates plaintiffs, West Market Plam Limited I'artnersbip and Montrose

entry of sumrnary judgment requiring Lisnited Partnership, move pursuant to Civil Rule 56 for dn

specific performance of the Sct.tlement Agreement at issue in this litigation. A Memorandum in

Support is attached.

ltespectfully submitted,

Mrk watlach (001094$) Brian Heskanip (0083548) T!-IACKER MAR'CIN51;K LPA 2330 One Cleveland Center 1375 East 9th Street C]evelam.d, OH 44114 Tel: (216) 456-3840 Fax: (216) 456-3850 [email protected] bheskamp*mipa.com

Atlorneys far 1'lainl& 1N THE COUIt'f OF COMMON PLEAS SUIVIMIT COUNTY, 01-I10

WFST MAItKCT PLAZA L.III+IITt1d CASE NO. CV 2008-10-7231 PAR-t'fVERSHIP et a€., (Consolidated with Case No. 201I-I 1-6286)

P€aintiffs, JUDGE ALISON MCCAIU1'Y V.

SIJMMt"f' COUNTY PLANNING PLAINTIFFS'MEÔRANDÎî IN COMMISSION, et al. SttPEORT OF THEIR MOTION FOR SlilMMARY.lUDCMENT . Defendants.

1. PR .F.I,RV[iNAItY STA'CERr1LrN'i'

These consolidated cases concern PlaintiR's', West Market Plaza Liinited Partnei-ship and

Montrose Retgii Associates Limited Partners;up (collc:ctive€y, the "West Market Partnerships"),

e.ntitlemnent to relieCaunder a valid, enforceable Settlement Agreement between the West Market

Partnerships and the Surruuit County Engineer, Sumit County Plarutiing Commission, and

Su=it County (the "Settl.ement Ageement'l. The V4fest Market Partnerships liave perfomecl

their end of the bargain under the Settlemetit Agreenietit. The County Defendaiits, hovvever, have balked. '1'[te West Market Partnerslups are entitled to specific perFormance of the

Settlement Agreement. Specifically, the County Defendants should be ordered to do what they promised--,require Wal-Mart Real Estate Business Trust (°`Wal-Mait'} to conduct a traffic

impact study complying with the terms of the Settlernent Agreement in connectinn with a massive developznexit currently being proposed on Rothrock Road, in Copley Township

C`Proposed Deve€opmcnt"), instead of attempthiLg to proceed with its Proposed Developnicnt on the basis of an inadequate, non-complying trafFic study that does not euen repect the effects of the closure of Ruthrock Road on the iralria in the area. H. I'+AC'i'IJAL A3qA PEtOCEDURA11 Y3ACI4GROU{Y13

Tlris litigation sterns from a lawsuit filed by the West Market Partnerships, as owners of shopping cen€ers sn the Montrose area and County taxpayers, against the Sununi€ County

Engineer and the Sumnxit County Plasmiiig Cammission to compel them to require an adequate traF['ac impact study in the Montrose area pursuant to their duty under the Sumrnit County

Codified Or

Agre,erneatt).' Under the Agreement, a spccified traft'ic impact study ("Agrecd Traffic Impact

Stady':) is required under certain aii^curnstances, such as when a proposal for any retail developrrtent is submitted to the l;ngineer or Planning Commission over which they have

"approval rights."

The Agreemeut was sigaied by all of the parties in Dccetnber, 2009 and bec:ame effective

on that date. On September $, 2010, the West Market Partnerships fulfilled their end of the bargain (as rcquir•eel) and dismissed their lawsuit in conformance with the terms of the

Agreement. Agreement, ¶'1'hrec, I'itzSirramons R,ff'idavit, 16.

In or around June 2010, LRC Mrrelopment, LI.C suVznitted an applica.tion for zoning pertnit to Copley Township witli regard to the Propvseci Uevelopment 2 Obtaining a zoning

pcrmit is a prarcquisite to obtaining a building permit. SCCO § 1305.05. Xntervenors

subsequently submitted an initial traffic impact study in cotknec€ion with their development of

the Rt>:throclc Rd. Site to the Simynut County Engineer which was rejected in December, 2010.

' A copy ai'the 5ettlement Agreetnent is attaekted as Exhibit I to the Affidarrit of `I'aM FftxSimmans, z Tfte June 2010 application for xaaiiig permit is anclied to the Affidavit of'I'om Fitr.Simmons as Gxhlbit 2.

-2- Paradise Depca, p. 47, Brttbaker Depo., pp. 33-34.3 Intervenors then subrritted a xvised traffic impact study pertaining to the 1'raposed Development to the Engineer in June, 2011, and an

addendum on August 1, 20I 14 that still did not meet the requirements of an Agreed '1'xafftc

Impact Study as described in the Settlement Agreem.ent, See Intervenors' AusNver filed August

2, 2012, 9188, 97; County Detendants Answer filed October 12, 2012,194,5 1'aKadise Depo-, p.

74." Althottgh West Ma.rket repeatedly asked the, Engineer to require the Intervenors to prepare

and submit a tral'hc impact study complying with the terms of the Settlement Agreement,

including in letters dated June 17, 2010, Nnvember 3, 2G1b, March 14, 2011, Aprii 20, 2011, and

August 4, 2011, the Jungineer never did.7 In fact, the Engineer never even attempted tcs compare

the traf#'ic study to the Settlerncnt Agreement te see if the revised traffic study complied with that

ent. Paradise Depo., p. 104. lnstead, on October 18, 2011 the Engineer approved Agreerr► Intervenrnrs' revised traffic impact study despite the fact that it did not comply witla the terns of

the Agreement and was grossly deficicnt,g See Intervenors' Answer filed Augttst 2, 2012, 188

(admitting non-compliance); I'aradise Depo, pp. 89-90 (approval); Brubaker llepa. 66-67

(approval); 90-125 (discussing sotre. inadequacies of the traffic impact study); July 25, 2013

3 Relevant portions of the dcpositions of Joseph Par-Ase, nn ernployee in the En4ittecr's office, and Alen $rubaker, thn Sulnrnit Couirty Engineer, are attached to the Affidavit ofTvm Fit2Simmons as Fxhibits 3 and 4. A The June, 2011 traffic impact study and the August, 2011 addendum aro attached to the affidavit of Tom Fitz3ijnrnons as Exhibits 19 and 20. The Coaint}+ Dcfendants' October 12, 2ti l2 Ans►ver is attached hereta m Exha'bit A. The Wast Market Partitersitips' Complaint is attathed hereto as Exh9bit B; Intervenors' August 2, 2012 AnstiWer is attached lsereta as Exhibit C. 7 See letters dated AIovember 3, 2014, March 14, 2011, April 20, 2011, and AcgLtst 4, 2011, from the West Market Partrttrstiips to Alan Bnibatcer, Summit County Engineer; 5ummit County Planning Connnission; and Pussell M. pry, Executive afSumcnlt County, attached to the Aftidavft ofTom FitaSimrnons as liad:ibit S. s'ftEa 4cto6er 18, 20i I letter is attached to Affidavit of Torn PitzSim mons as Exhibit 6.

-3- Wells & AssoGiates letter regarding Settlement Agreetuent Review;9' July 25, 2013 Wells &

Associates letter regarding ltothrock Road Closing.i°

Since this time, Wai-Mart has ptu'chased the prQperty Pertaining tro the Propasec): llevelopmettt from the fornter developers, and re-sabmttted azoning appliGa.tinn to Copfey

Township in or around March, 2013.11 The zoning application was for4varded to the Caunty

Engineer and Pkuming Commission for review, comment, and approval. Copley Township

Zoning Resolution, § 13.01{1}, The Cc>unty Engineer in fact issued cunditivnal approvals in connection with this application on May 29, 2013, 12 without requiring a tt'►ore substantial traff-Ic study, or one which reflected the impact on area traffic of the alosure of Rothrock Road.

In addition, on or arduncl February 21, 2013, Wal-Matt submitted an Application for

Consolidation i'lut Review to the Planning Commission.13 Accoxc3ing to Bob 114c17owa11, a

Summit County law department attorney, tlie County Planning Commission must approve the application or require further Subdivision Review, wltich would require further Planning

COfTErnissiort apPPC1va)iS.14 Either way, Planning Commission approval is required. The Planning

Commission has since det.crtmined that major subdivision review is required, which would require furtlzer "approvals" pursuant to SCCO Chapter 11. See June 26, 2013 Planning

__-- .. __. .»._------.-- .------. 9Thc July 25, 2013 Wells & Associates letter regarding Settleittent Agreement Review is attached to the Rfl'idav'st of Michael J. Workosky as Fxhlbit 2. ' The July 25, 2013 Wells & Associates letter regurdi;tg Rothrock Road Clcrsin ; is a#tached to the At'fidavit of Michael J. Workoscy as Exltibit 3. 11 'i'he Mareh 2013 xon ing appi ieation is anaohed to the Affidavit of'fcm FitaSimntans as Exhil.tit 7. 'a'fhe Mgy29, 2013 letter from Summit Coanty Fnginaerto Calsley'L'ownstzip is attached to the Elffidavit of'fom FitzSiinmons as Exhibit 8. 13 The February 21, 2013 application for cansolida3ion plat review is attached to the Affidavit ofTom FitzSijnmaus as Exhibit 9. `a See Fe6ruary 22,2013 emaii from Bob Mct3owall to Stephanic Readnower reFercncing O.R.C. 71 1.131, enEitled "Aplsroval by planiilng autitority witliottt plat" and slating "the County must either approVe the application and l;le the mylar or pruvide you urith ouir reasons for recluiring County Flanning Cornrnission review." attached to the Affidavit of 3 orn FitzSirnmons as Exhibit 10. The approvals required for subdiyision review are set forth in SCCO Chapter t 1,

-4- Commission merno." Yet, the County Defendants have manifested no intention of ever requiring an Agreed Traffic Impact Study. And Wal-Mart is moving aliead wilh the proposed development without ever completing a trafFic impact study which satisfes the rcquirements of the Settlcment Agreement.

Tbis Court has already detertnined that the Settlement Agreement "is an enforceable agreement, and wili stand as sucli." June 11, 2013 Crder_ In addition, this Court has determined that fhc City of Fairlawn is elrtitled to close one end of Rotiuock Road. June 7, 2013 Order. The

City of Fairlawn closed Rothrock Road on duly 19, 2013.16 In response to the road closure, the

County, in an apparent a.tternpt to abandon nny re.sponsibility for Rothrock Road, is now seeking

to °°decertify'° Rothrock Road as a County Hsghway and abdicate responsibility for this road to

Coplcy Township. 17 This appears to be a fur€her attempt by the County Defendants to avoid

their traffic oversight responsibilities pertaitiin.g to deve[opments ofFoFRothrocl€ Road, since the

Summit County Subdivision Regulations mandate a traffic impact study for "Subdivisions which

have access off County roads." SCCO § 1108.04. I'erhaps the only remaining hope for an

adequate traffic impact study in order to protect the Mon.trose area from the traffic ttigbtmare that

will bo created by the Proposed Development is the Settlement Agreement, which continues to

mandate that the Erygineer andlor Planning Commission require a complying Traffic Impact

Study whenever tho Engineer's or Planning Corumission's approvals aiz required.

YII. AFPt.1CABLli`s LEGAL R['ANDhRID

Pursuant to Civ.R. 56(C), summary judgment is proper if,

(1) No genuine issue as to auy material fact xemains to be litigated; (2) the moving party is entitled to judg-rnent as a matter of law; and (3) it appears from tl7e evidence that reasonable

1S The lune 26, 2013 E'lanning CoHnmissionmem is attached to the AFf-icievit of Tom FitzSiinmons as Exhibit 11. °6'1'om FitxSimmons Affidavit, I 10. '7 .lune 27 28, 2013 mnait cltain involving lrv Sugerman, counsel for Capley 3'ownaliip, attached to the Affidavit of Tom FitzSirnmons as Exhibit 12.

-5- minds can come to but one conclusioir, and viewing suc,h evidence most stt^ongly in favor of the pa.rty against whom the motian for summary julgment is made, that conclusion is addverse to that party.

7etriple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for suminary judgment bears the initial burden of in£orrning the trial court of the basis for tlic tnotion, and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. I3ur7, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the inoving party must support the motion by pointing to soTns evidence in the record of the type listed in Civ. R. 56(C). Id. Once this burden is satisfied, thc non-moving party bears the burden of offering specific factss to show a genuine issue for traal. Id at M. The non-moving party may uat rest upoiz the mere allegations and denials in the pleadings but instead must point to or suinr►it some eviden.tiary inaterial that demonstrntcs a genuine dispute over a xnaterial fact. Henkle v. Henkfe, 75 Ohio App.3d 732, 735

(12th Bist,1991.).

IV. WFST MARICET IS EN7"ETLEA'1'O SPEC[FIC Pi:RMiMANCE OFTHE 5E'i'€t,EMENT ,p1GRE8141 sNT.

Specil-rc percformance of a contract is an equitable rcm.edy that is "available when the prolnisor's failure to perform constitutes a breach of contrxet and a legal remedy for that breach, such as money dam.agcs, wvill not afford the promisee adequate relief:" Perraro v. Crrslrano, 2nd

Dist. No. 23146, 2409 Oliio 47$9,n 71-72. Where damages aree too speculatiue or net easily calculated, specific pea-forrnanco is an appropriate remedy. C?lg1ebay Norton Co. v. Armco, Ina,

52 Ohio St, 3d 232, 237, 556 N.E.2d 515 (1990) (Specific performance appropriate "where deteiniiztation of lnng term dairages would be too speculative"). Additionally, "A party seeking

speGi#ic peirfonnance of a contract must establish that he has a valid, enforceable contract, that he has performed or tendered f,erfonnanoe, and that he is ready, willing and able to promptly

-6- perfornt al[ acts required of liin in the specific execution of the contract." I3ahner's Auto 17arts

v. Bahner, 4^' Dist. No. 97-CA-2538, l 998 Ohio App. I.FX1S 3453 (.lnne 23, l 998).

Given the anterest of courts in "promoting contractual disposition of iitigatacrn,'° and the

-purpose of specifia performance in "placing the parties in the position they uFauld have held had

the breac:h not occurred," specific performance of settlelnent agreements is appropriate. Weli:s v.

Cornelrus, 12'h Dist. No. CA 89-12-169, 1990 Ohio App. LEXIS 3$39 (Sept. 4, 1990). See also

Carnahan P. GYry o.#'London, #2.'h Dist. No. CA 2005-02-005, 2005 Ohio 6584, at 1114 ("an

enforceable settlement agreement existed, and conscquenily [the courti did not err by ordering

speeific performance of the agreemenn.

There arc ito genuine issues of material fact that could preclude siunixtary jut3grnent for

the West Market Partnerships on their claim for specific perfomiance-.

u. The Settlement Agreernent is a vaEid and enforceable agreement, and the West Market Partnerships have performed their end of the bargain.

There is a valicl, wforccable Settlement Agrccrnent in this case that clearly sets forth the

terms binding the County Defendants. June 11, 2013 arder. Tine Settlement Agreement

obligated West Market to "dismiss the Lawsuit with prejudice and at their cost." Agreemeot,

Q Three. West Market perfot-nied its end of the bargain under the Scttlcmen€ Agrecment by

dismissing its tawsuit in September, 2010. FitzSimrnons Affida.vit, 16.

b. The County Uefcndan€s' obligations under the Settlement Agreement have been triggered.

The Settlement Agreement's requirement that an Agreed Traffic Impact Study he

cvnductcd is triggered by teaxns specified in Paragraph. Four of that Agrecane€it:

The Commission and/or the En&eer shall require any person(s) or entity(ies) (tlte "i?evelaper") submitting a propasal for any retail development in the area defined in l;xhibit B (a "Proposal') for which the Comrnission and/or the engineer

-7- has approval rights and that satisfies the following criteria to conduct a"'I'raffic tmpact Study'° . . .

(a) Any proposed retail development that will gencrate or is reasonably anticipated to generate traffc volunnes equal to or exceeding 100 new vehicle trip ertds (total of entering and exiting vehicles for the proposed development at full build out and occupancy) during any peak hour of the development, including the peak hour of generator for both weekdays and weekends. All calculations will be made excluding passby, intertral, or non-auto trips.

(b) For purposes of this Agreernent, traffic counts, volumes and growth rates shall be calculated by the annst recent counts or assessments done by ODOT or the lsngineer, or calculated by OTOT or the E-ngineer, using the criteria and mathc►d4logies contained in the then-current Inst€tute of Trrxnsportation F-ngineers Trip Cieneration Report.

(c) For purposes of this Agi^cernent, a "Proposal" triggering the requirement for a Traffic Impact Study shall not include a proposal for a rnixed-use developznent that contains some retail component which is artcillary to the prixtilLy land usc unless the retail component of the developinent, in aggregrtte exceeds 10,000 scpFare feet.

Agareerrsent, I Fottr. Under the Settlernent Agreement, therefore, a Traffic lrnpact Study coztfortning to the requirements of the Settlement Agreernent is requ€rel where:

+ a developer submits a propmal for any retail development in the defined area, for which the Commi$sion and/ar the engineer has approval rights;

• the proposed develapment will generate traffic volumes equal to or excceding 100 new vehicle trip ends (total of entering and cxiting vehicles for the proposed development at full biiild out and oceupency} during any peak hour of the development; and

the proposed developrrtent is not a mixed use development, or is a mixed use development that includes a retail coraponent that is greater than 10,000 square feet.

All of these requirements are sa#is#'ted. 'l'here is no dispute that the proposed developmeiit is

locatc[ within the geographic trigger area,'s will gerscrate or is reasonably anticipated to generate

traiTic volumes equal to or exceeding 100 new vehicle trip ends,19 or that the proposed

rs Answer of Intervenols,1195; CosnparG F^dribit B of the Sctllement AgeeMenC with Site Plan Sheet C0110, atEacheci to the Affidavit of'fom FitzSinursons as Exttibet 13. rs Answer of Intervenors, 196.

-8- deveiopment is not a mixed use development or that it exceeds 10,000 square feet.2° However,

Intervenors and the County Defendant.s have previously clainzed, rcmarkably, that the Couaty

Engineer and Planning Commission have no "approval rights" over ariything submitted to date and theiefore have contended that the Settlement Agreement is not t.riggered.

The Developer has submitted various proposals for a retail development in the geograpNc area tlefitied in Exhibit B of tlic Settlenient Agreement. Specifically, there are at least fnur such proposals over which the Engineer ancUor the Planning Commission ltave or had

`°approval rights": (1) two zoning applications to Copley Township (one in 2010 and one in

Marcli, 2013); (2) a traffic impact study sabmitteci to the County Engineer in 201D and 2011; and

(3) an application for Consolidation Plat Rcview pertaining to the Proposed Development.21

Witii respect to the prior developer's and Wal-Mart's zoning applications, the Copley

Township Znrting Resolution states: "An application for a Zoning Certificate i^r Nan-

Residertt.ial uses ... shall be issued oaily afYer site plans as specified herein, liave been snbmitted for review and approval by the Zonihg Department, and io licab e a eneies. ..." Copley

Township Zoning Resohttion § 13.01(p). "Additional Reqni3rements for Site Plans" include tliat, "Xn addition to the other requirenxents of this Resolution, all applications shall be determined by the Zoning Inspector to meet the following criteria .,..(c) after review and recommendation by the Sumrnit Cormty Engineer and fittding that the grading plans, traffic circulation patterns and provisions for maintcnance of the public drairsage facilities adequately provide for (certaiti specif ed criteria]." Copley Township Zoning Resolution § X 3.01.(F)(4).

Approval is also requircd from the Planning Commission. Id.

20 See Overall Site Platt docuntent, attachcd to theAffdavit of Tont FitaSimntons as Fxhibit 14, which demnnstratcs approximately 2$$,000 squarc ftet ofvetail space. xk Ekhibits 2, 7, 4, and 19 to Affidavit of Toin FitzSirnmajts.

-^- A Development Agreement between Copley Township and 1tlTal-Matl, dated January 4,

2012, further requires approval by the Summit Coutity Engineer.22 It states: "Coptcy Towrtship has cunducted a revievv of the Preliminary Sitc Plan and pursuant to the Zoning Itesolt,tion ltas submitted to, and still requires, 1:amments, mcommcndatiorss and $nnrovals from the

Sumtnit County Engineer ("SCE"} [and other entities]." See Development Agteenfent, § I.D.

And it fiarfher pz•ovides that "Colnce the comments at►d approvaLti from SCE, SWCD, DOES and APUB have been received auid transmittetl to LRC and Wal-Mart, LRC and Wal-Mart shall prepare and submit a Final Site Plan for the Proposed Developrnent to Captey '.I'ownship." See

Development Agreenient, § I.E. Furthermore, it notes that the traffic impact study was

`:approves[ by the SCE,'° Deve[optnent Agreement, § I.D. Additionally, it also rectuires

`4 apprwrval in vvriting" by the Lngineer in his capacity as statutQry towmship engineer pertaining to certain roadway improvenients. Irl. § II,

If therc is any remaining doubt that a proposal requiring the Engineer's "apprnval" has been subrtxitted, con-espondence involving the Engineer's office fi.ntlier d$tnomtrates that the

Enginecr must approve the plans for the Proposed Development in connection with the zoniug pl'flcess:

^On March 2, 2012, Tim Boley of the County Ei1gineer°s Office errtailed Colleen Burns, a Phase Manager for Woolpert (Wal-Mart's consultant), stnting: "I have approved the draimage improvernents For the Copley Wal-r.nartl:^am's Club site, I am still awaiting a tinax approval of the Iong-term maintenance agreement frorn our Administration. Once approvec[, a final storm water approval letter will be issued, The Administration views this agreement as being parrt of the storm water approval so a final approval letter oatmot be provided until this ageemcrxt is finaiizeel. I apologize for the delay in this approval."23

• Several months later, on September 4, 2012, Woolpert responrled to the County Engineer stating: "I understazid the long-term rnaintenance agreement has finally been approved. Please copy us att yowr signed site plan approval to C,olsley u..------_....,,.^^^------., ^- ---^ 22 The Devetopment Agrecn,ent is attsched to the Aftidavit of Torn FitzSimmans as Uiibit 15. " See e-mai( chain attached to the affidavit of T`orn F%tz5iatmons as Exhibit 16.

-10- Township for the Zoning Certificate. 1 have attached the Site plan Review itequest from Coptey Township for your use if nccded."''°

^ This inquiry sparked an internal disetzssictn on the same day in the Engiueer's oTiee alxout "site plan approvAl":

o Tim Boley emailed i.,arry Fulton of the Eng'sneer's office inqttirirtg "can we issue an approval for the Copley WalrnactfSat€t's Club sincc we now have an agreement for the storrti water n ►sintenance?" c) Mr. Fulton respomded: "]' assume you mean the storin water r.omponeiit of the plans not the entire p3ai► approval, since it is my understanding the roadway plans are not complete," o Tim Boley then responded, cc'ing Joe I'aradise: "i am just taiEcing about the site plan appiroval, The off-site improvenients have not been designed and would require a separate approval."25

4 Also on the same day, Woolpert again inquired of the County Engineee: "My understanding is that you guys have an original agreement. . . . Why is ihis holding up aR€r appruvai ivith #tre 'Iawnship? We need to release the zoning certit:rcate before the Township changes their code. Is there any way you can send the approval let#er to the Township?'°76

The County Fmgineer then responded on September 5, 2012: "1 hawe a draft approval letter being circulabed for internal review. 4ltce it is approved I wili send it.'6a7

e The County Engineer's office then forwarded to Woolpert, ort September 6, 2012, a copy of the approva.l letter signed by Tirrn Boley and addressed to Copley Township. The letter states: "This office has cornpiGted its review and drainage calculations for the above referenced project. The design of the storm water facilities is acceptable as subnaitt+e€l.'°23

Most tcccntly, in connection with Wal Martt Marcli, 2013 submission of a zoning application to Copley Township, on May 29, 2013, 'Cm Boley from the Coun.ty Engineer's o#Ece sent the Engineer's "Walmart/Sam's G7ub A,pproval" by email to Copley Township, statiaig "our approval letter is attached °' The "approval letter" stated sn part "The site plans

,..< ...... ,.,...... __y^. , 24 See e-mail chain attached to the afficfavit of Torn PitzSimmons as Exhibit 16, 25 See e-mail chaia aitached to the affidavit of Tom FitzSimnYons as Exhibit 17. 2" See e-niail ctzain attached to the affidavit of Tom Fi#aSimrnons as &hibit 16. 2' See e-mail chain attached to the affidavit of Tom 1± itzSimmons as luxhibit 16, 2¢ See September 6, 2012 approval letter Prom 'tlmothy Boley attached to the affdavit of "rom FitzSimmons r5 Gxhibit f 8.

-11- and drainage calr.ulatiuas are approved as submitted." The letter further stated that the

Engineer is withhQlding a road opening pcrmit until- "all offsite roadway and iraffic

improvements are approved."

With respecc tn tue traff'ic impact study previously subnzitted to the Engitiecr, the

Engineer has already, in fact, inappropriately exercised his approval rights whej3 he ap}7roved a

non-compliant Traffic ltupa.ct Study submitted in 2011. In an Qctober 18, 2011 letter, the

Engineer stated "tliis letter will serve as our approval of and acceptance of the Trafric Impact

Study."2!D

Finally, Wal-Mart has also submitted an application for Consolidation. Plat Revicw to

Sumruit Courtty pertaining to the Proposed Development an a Summit County Subdivision

Regulations form. This submission recluired the review and approval of the County Planning

Commission. A Februaty 22, 2013 email authored by 13ob MaDowall, rcferencitti; C.R.C.

711.131, entitled "Approval by planning authority without plat," stated: "the County must either approve the application and file the mylar or provide you with our reasons for requiring

County • Planning• Commission review, Sirtce I have not spoken with our 5ubdivisifln

Administrator I cannot give. you a€lef'initive tirrte for approval or disapproval ..,,00 The

Planning Commission, thet-efore, has approval rights over this application. 1~urthermrxe if subdivision review is required, additional approvals will be reqtleircd pursuant to SCCO

§ 1103.04; 1103.07 (listing various required approvals under the Sezbdivision Regulations). irt fact, the Planning Commission has already determined that the Proposed Development is a niajor subdivision, triggering the app'roval recluirements of SCCO § 1103.07.31

See Dctober 18, 2011 Letter attaehed to Toin FitzSiEiunon$ At'Fidavit as Exhibit b_ 3o Seo Cebruary?2, 2013 email attached Co Tom Fi#zSimmons AFiidavit ras Exhibit 10. See June 26, 2013 Planning Cominission memo attaeltcti to Tom FitzShnmoiis Affidavit as Exhibit 11.

-12- Required approvals, eonsiderations of appTavals, requests for approval, and actual approvals abound. W hat more is needed to trigger the Settlement .A.greement's "approval rights" requirement?

e. The County Engineer has breached the Settleinent Agreement.

The Settlenent Agreement specifiically requires the County Elrgineer to nmidate a

Traff'ic Impact Stady that considers other approved developnuents within Ivloirtrase, coi-ifor,r,s to certain objectives established by QIIOT, examines build and no-build conditions for both openiuig day and design year scenarios using standard capacity analysis procedures recainrnended by ODOT, and identi€ies the means by which "adequate" access and traffic flow shall be maintdined. ,Agreement, I Six. "1'he "minizxaum geographical study area" to be analy;ced in the traffic study xnust extend "outward from the Proposal site to the first existing intersection with a current rlumbercxl state higliway route in each direction, including Interstate interchanges and junctions at which the Proposal creates a"Minirtt.al Oegradation" as that term is defiirted" in the Agreernent. Agreement, I Six.

The County Engineer has breaclteci the Settlement A.greememt. Not only has the County

Engineer refused to require Vlal-Mart to conduct an Agreed Traffic Impact Study, but it has actually approved a trafftc impact study that does not comply with the Settlement Agreement.

Specifically, thc June, 2011 traffic impact study and August 1, 2011 addendum approved by the

Eugineer fail to comply with the Setden3n ent Agreement for a variety of reasons:

• They did not inciude an alternative that considers the closure of Rothrock Road as approved by the City of Fairlawn, which has now occurred as of July 19, 2013;

• They do not include the key intersectxon of State Route 18 (West Market Street)fCleveLand,Massillon ltoad in their analysis;

. They failed to incfucle a full analysis of Saturday wecicend cond.itions, which can only be determined through a more extensive review and verilication of the txaffic 0

-13- distribution analysis and divertcd link a.nalysis than is currently included in the traffic impact study;

The proposed protectedlperrnissive phasing for the northbound dual left tttrn Isnes on northbound Springside Drive at the SR 18 intersection is not in compliance with tho [7DQT Location and Desigr, Manual;

They do not include a link capacity analysis for SR 18, Clevcland-Massillon Road, and Rotltrock Road, which is necessary to verify that there is no degradation as defined in the Settlement Agreement;

o They improperly excluded analyses of the freeway seginents, weaving areas, and/Qr nzergeldiverge analysis to verify that thm is no degractation as defined in the Settlement Agreement;

a Critical intersections within the study arca were not included in the crash analysis; attd

e'I7tey fail to address or account for other potential properties with approved site plans with °'hy-right" development density within the study area under either 2013 or 2033 conditions as required.

See July 25, 2013 letter from Michael J. Workosky to Mark'Wallach and Tom FitzSini€nons.3^

There is no genuine issue of fact that the .lttne 2011 traffic in•rpact study and Attgust 1,

2011 addendum do not satisfy the requixements of the settlement ag€eernent. After all, the

Engineer never even atternpted to compare this traffic study to thc Settleniciit Agrwment to see if it compliad with that Agreement. Paradise Depo,, p. 104. In fact, intervenors specifically

"admit that the traffic study prepared by URS in or around June 2011 and the addendum submitteci by URS Corporation in or around August 2011 are not an SAgrced Trafric

Impact Study' described in the purported 'Settlement Agreement." Iratervenor's Answer filed August 2, 2012, 188, 97. Similarly, the County Defendants have adnutted the West Market

Partnership's fdlcgration that "ne[thar the Coure€y Planning Cornmissiou, the County

Engineer, nor the County Gxecr€#ive hsts requ3red, as of the date of this Petition, the

Developer to prepare the Agreed Txaftic Impact Study kor the k'rolroscd Developtnent."

32 This tetter is atEached to the A#l-idauit of Michael Workasky as Exh[6[t Z.

-14- Weat Market ]'artner5hips' Complaint filed November 8, 2011, 140 Answer of Defendants filed

October 12, 2012, 190. For example, b©th County Defendants and Iutervenars admit that (1)

{:neithcr the June 2011 URS Study nor its Addendum #1 consictared the impact of the Proposed

17evelopment on traftic at the intersection of West Market Street aad Cleveland-Massillon Road" and (2) that "Neither the June 2011 URS Study nor its Addendurn #1 considered the impact of the Proposed Developrneiit on weekend trafric, in that the studies excluded weekend traffic counts." West Markct Partncrships' Complaint filEd Noveniber 8, 2011, 1$2-83; Defendants'

Answer filed Cctuber 12, 2012, 1182-83; Intervenors' Answer filed August 2, 2012, 11f 82-$3_

The County Defendants' breach is mate.rial. Requiring developers to conciuct an Agi-ced

Traffic Impact Study prior to any further significant development in the Montrose a= is the

essence and heart of the Agreement.

d. West Market is I Gin titled to Specific Performance.

Specific perforrnance is an appivlrriatc remedy beeause there is no legal remedy such as

money darnages that would make the West Market Partnerships whole, and specific per£or=nce

is necessary to plaoe the West Market 1'artncrships in the positioii they would have occupied, had

the breach tiot oecuixed. The West Market Pattnerships have already dismissed their priox

claims against tlie County Defendants with prejudice, and without upecifia pecl'orrnance would

f,orever. lose the benefit of their bargain under the Settlement Agreenent with respcct to the

Proposed l)evelolsment. FitzSimmons Affidavit, 16-8.

Additionally, it would he cxtremely difficutt to determine an aniount of money damages

that would coinpensale ttie West Market Partnerships for the County Defendants' brea.ch of t,hc

Settlement Agreeinent. FitzSimmons Affidavit, 110. Tn order to do so, the West Market

Parinerships would have to famiast the futurc loss of business and other lasses resulting from tlie

-15- I^ traffio nightmare created by the County Defendants' breach and the resulting lack of

infrastructare improvements. Any monetary damages resultittg from the failwe to require an

Agreed Trafric Irnpact Study and the resriiting lack of infmtructure impmvenlents would require

a degree of speculation that makes specxie perl'cfrrnance approlxriate.. FitzSimtnoas Aff'idavit,

110-12_ See aglebrty Arorrorr Co. v. Arntco, Inc., 52 Ohio St. 3d 232, 237, 556 N.E.2d 515

(1990).

V_ CC}NcLUSIoiV

'i'lie West Market Partnerships ait entittad to Sunnnnaty 7udl;inent on their claim for

speoific pedormance, A valid, enfoRceable Settlement Agreement exists, The West Market

Partnerships have coniplied witli all of their oblagations under the Settlement Agreement. Thc

County Defendants have breached their obGgatiniis under the SettlerAent Agreement by refeising

to require '1yVaI-Nlarrt to conduct the traffic iittpact study required by the Settlement Agreement,

and by approving a defecti-ve traffic irnpact study. Thc West Market 1'as-tnerslzips have no

adequate remedy at law, and are cntitled to specific performance.

Respectfully submitted,

Mark Wallaclx ([1014948} Brian Hesk.arnp (0453548) T'-IACiCER MARTINSEK LPA 2330 Diie Cleveland Center 1375 East 91h Stt-eet Clevelazed, OH 44114 Tei; (216) 456-3840 Fax: (216) 456-3850 rnwallach@trnlpa,com bheskarnp3u tmlpa.com

Attorneys for Plaintr;^fs

-16- CERTIFICATE OF SERVICE

I hereby certify that a true axxd genuine copy of P1ainaff's' Mottorr far SummuryJudgrncnt and Memorarrdurxf in Support was served via regular U.S. mail this 16 day of August,

2013, upon:

Johit P, Slagter Marvin D. Evans William D. Dowling Assistant Presec:uting Attorney Buckingham, Doolittle & 53 University Avenue, 61' Floor Burroughs, LLl' Akron, 01-1 44308 3800 Btnbassy Parkway, Suite 300 [email protected],net Akron, OH 44333 jslag,[email protected] Arrarrrey , for County DefendantslCross- [email protected] clair7T D6, f^'rtdt1 i?fS

S11eldor< i3ert3s Thomas M. "1'ege, Jr. Timothy J. Duff Ainber dustice-Mannung Bcrns, Ockner & Greenberger, L(.C Keating Muething & Ktelcanlp P[d., 37331'ark East Drive, Suite 200 One East kourtlS Street, Suite 1400 f3eachwuoti, OH 44122 Cincinnati, Ql1 45202 [email protected] ttepe@,kmklaw.com tduff(rrbernsockncr.com ajustice-nr:anning@k mklaw.cn m

.4Ftorneysfor Interverrors LRC Atlorneys fol' Ittlet•venor Wal-Mart &velopn4ent Compaiiy, LLC, LRC Real i

^^- ^xi^^

636124

-17- Exhibit 10 copy. ORGAL IN TiidE COURT OF APPEAiS NINTH APPELLATE DISTRICT SUMMIT COUNTY, OHIO

STATE EX 12EL.114TEST MARKEI' PLAZA ) LIlVIYT-B7 PARTNERSHIP ^ 1350 West 3rd Street ^ Cleveland, OH 44113 } CASE ND. CA_25883

and } ) 1VfONTRQSE R-ETAIL ASSDCI'ATES LIMITED } PARTAIERSHIP ) 1350 West 3rd Street Cleveland, OH 44113 ^

Relators, ) C13. r'•

V. 0:; r%7

SUMMIT COUNTY PX.ANNING COMMISSION ^_ :• Sununit Cty. Dept, of Development, Planning Div. 175 S. Nlain Street, Room 207 Akx0D, OH 44308 ] AMENDED PRTITION FOR and } WRIT OF NiANUAlY1.US } RUSSBLI. M. PRY Surnrrrit County Executive ^ 175 S. Main St, 8th Flaor Akron, OH 44348-1314 ^

and ^ ALAN BRUBAKER } Summit County Fngineer ^ 538 E. South Stteet Akron} OH 44311-1843 ^

and ^ ^ COPLEY TO'4TiTNSHIP ^ 1540 S. C1evcland-iVlassillan Road ^ Copley, Ohio 44321 ^

Respondents. ^

{UlioaJ6o.0UC;l } CQPY r

PATEV,^

1. Relator, West lbiarket Plaza Limited Partrlership, is an Ohio limiterl partnership

with a principal place of husiness in Bath Township, Ohio. West Market Plaza l.imited

Partnership owns and operates a shopping center at the intersection of West Market St and

Cleveiand Massillon Road in Summit County, Ohio (the "Count^j and is a Cojmty wtpayer.

2. Relator, Montrose Retai.l Assoeaatss Limited Partnership, is an Ohio lirni#ed

paftership with a principal place of business also in. Bath Townsbip, Ohio. Montrose Retail

Associates Limited Paftership owris amd operates another shopping center at the intersection of

West Nlarket St. and Cleveland Massillon Raad in the County, and is a County taxpayer.

3. Relators, West Market Plaza Limited Par[mership and. Montrose Retail Associates

Limited Partnership, shall be collectively referred to herein as "Relators."

4. Respondent, Summit County Planning Commission (the "Planning

Cornmission'% is the Planning CoInraissian for the County and is located at 175 S. Main Street,

Room 207, Akron, Ohio 44308. The Cvmrrnisaiort was established pursuant to Ohio Revised

Code § 713.22 and is charged to "exercise the powers and duties established by general law.°,

Sununit County Codified Ordinance (`°SCCO"I, § 141.01.

5. Respondent, Russell M. Pry, is the County Executive for the County (the "County

Executive"), located at 175 S, Main Street, 8th Floor, tlkzon, Ohio 44308. The County

Executive is the chief executive offim for the County, who serves the County pursuant to

Article III of the County Charter and Ohio Revised Code Chapter 302.

6. Respondent, Alan Brubaker, is the County Engineer for the Cnunty (the "County

Ensineer"), located at 538 E. South St., Aluon, Ohio 44311. The Engineer serves the County

t to Ohio Revised Code § 315 and ttie Summit County Codified Ordinances. pursuar►

{41#479bo.000,1 ) 2 COPY ` i:

7. Respondent, Copley Township, is an Ohio Township, located in an

unincorporated area of the County ("Ccplay Township"), with of^im located at 1540 S.

Oleveland-Massiilon Road, Copley, Ohio 4-4321. Coptey Township is joined in this action

because it has an interest relating to the subject of the action, and is so situated such that the

relief saught by Relators may not be effective unless Copley Township is enjoined from taking

action inconsistent with this Coturt's jurisdiction pending this Court's determination of the merits

of this Petition. 8. This Court has Sutisdic#ion over the matters presented herein pursuant to Section

3, Article N' of the Ohio Constitution and Oliio Revised Cade § 273 I,02.

THE COUNTY'S ROLE llN OVERSEEYNG THE DEYELOPMENT OF SLTBDI

9. The Cnunty has adopted regulations for the review and approval of subdivisions,

which regulations are set fortli in Part 11 of the SCCO (#he "Subdivision Reg ►alations"). See

SCCO § 1141.03.

10. The Subdivisian Regulations are adTninistered by the County 1'lwming

Commission, the County Engineer, and/or the County Executive.

11. The Subdivision Regulaticnus are applicable to all subdivisioiss of land located

within thc unincarporated axea of the County. SCCO § 1101.03.

12. Subdivisions inclwde, in pertinent part, "the innprovmnent of one or m.ore parcels

of land for residential, commercial, or industrial structures or groups of slxuclures involving the

divisi4n or allocation of land for'tlne operiinga widening, or extension of any straet or streets ...;

tlie division or allocation of land as open spaces for common use by owners, occupan.ts or lease

laolders or as easernents for the extension and main#enance of public sewer, water, storm

drainage, or other public facilities...." SCOO § 1102.43 (a)(97)(B).

(01 I0790.WC;1 I 3 CoIP1C ;

13. The SCC4 explicitly provide that the County seeks "tm secure and provide for

Sumnreit CoWnW° a number of objectives in enacting the Subdivision Regulations, including:

"(t]he proper arrangemeut of streets or highways in relation to existing or proposed streets and

highways and the thoroughfare plan;" "[a]deqaate and convenient open spaces for traffic,

utilities, ancess for fire-fighting apparatus, recreation, liglit and air, and the avoidance of

congestion of the population;" 'It]he orderly, efflcietzt, and appropriate development of land;"

, lsjafe and convenient vehicular and pedestrian movement;" «[t]he proinotion of pnblic hDalth

safel:y, comfort, convenience, prosperity, and general welfare, and the protection of the i environxnent;' and "[t]he equitable hat7dling of all subdivision plaxs by providing unifor►n

proaeduires and standards for observance by both the approving authority and Developer as

defined [in -Part l l]'° SCC{) § 1101.02. 14. `fhe County also requires that the Subdivision Regulationa "shall be broadly

construed and interproted so as to achieve their essential purposes." SCCO § 1101.06.

15, To falfffl tho County's objectives, the County subjeats both Niajor and Minor

Subdivisions, as defined in § 1 I Q1.t}2, to specific review procedures.

16. Major Subdivisions are defined as "[a]11 Subdi.visions not ciassx.fied as a Miiiox

Subdivision, inclading but not lisni#ed to Subdivisions of more than five (5) lots, any one of

which is less tlian five (5) acres, or any size Subdivision requiring the creation, widening or

extimxsion of a street or acocss easement or requiring the division or allocation of land as a utility

or drainage easement or subdividing platted land, to create additional building lota in a recarded

Subdivision." SCCO § 1 1{12.03(a)(99).

17. Minor Subdivisioixs are defined as a"5ubdiviszon which is a division of a parcel

of land along an existing public street or road, not invo[ving thc opening, widening, or extension

(011D7960.D[7t„1 } 4 CQPY ^

of any street, road, or access eas=Lolt and involving not more than five (5) iots, any one of

which may be less than fivc (5) acres after the original tract has Geen eornpletely subdivided.,,

SCOO § 1102.03(a)(100). 18. The "County Planning Commission shall determine that a proposed subdivisioxx of

land is a Major Subdivision if it ...[ia1 any size Subdivision requiring the creation, widening or

extension of a sfreet or access easement or requiring the division or allocation of land as 4 utility

or darainaga casement or is subdividing p3atted land to create additional building lots in a

reeorded Subdivision." SCCO § 1103.03(b). 19. Major Subdivisions are eligible for apprflval pursuant to a four-stage process.

SCCO § 1103.07(a). 20, T1ic four-stage approval process incorporates the review andlor approval of

various entities, including the County Planning Conunission, the County Biigineer, the

Department of Environmental San+iees, the Ohio Environuental Pratection Agenoy, and the

County Health Depatznent.

21. The first stage of the approval prflced.ures for Major Subdivision.s is the "Concept

plan Stage:' See SCCO § 1103.07(b).

22. The Concept Plan Stage requires the developer to subrni.t ai application for a

"Concept Pls'1.T1 DfsGtlsSloll" !'118efit1g and to submit copies of the CollCept p1at1 and "[o]thEr

irtforrnatiori that the Staff [of the County Planning Commission] may request to assist in

understanciing issues of the proposed subdivision." SCCO § 11 03.07(b)(1).

23. The County Planning Commission then transmits the concept plau to the County

Engineer, tiio County Health Departaaent, the 1.]epaitment of i;nvironmental Services, the

Township Trustees, the Township Zoning Commission, the Township Zoning Inspector, the

{0l 107$4RDOC;1 a 5

_. _ _. CQ1°' 1 .

Township Fire Department, the Township Road Superintendent, and cho County Soil a1.td Water

Conservationl]istrict, SCCO § 1103.07(b)(2).

24. The Subdivision Regulations' requirements for approval of Majar Subdivis.ioQs

also im1udes numerous requixed timelines and additional submittals by a developer seeking

approval of a Major Subdivisiot-L in the Concept Plan Stage and tlarougbout tiie remaining three

stages before approval of the Final Plat.

THE PROPOSED DE VRLOPMENT OF A. WAL-1VIART SUPER STORE, SAM'S CLUB WAREHOUSE STORE, AND GAS STATION

25. ln or around June 2010, LRC Development Co. {the "Developer"} submitted a

proposal to develop approx.imately 40 acres of currently undeveloped land for the construction of

a Wal-Mart Super Store, a Sam's Club warehouse store, and a gas stati4n, in Copley Township

(the "Proposed Development"). ..

26. Copley Township is an unincorporated area of tbv County.

27. The Proposed Development would be constructed on Rotlroctc Road, a County

highway, in the "Ahontrose Area" of the County.

28. Tlte Proposed Development involves the construction of a group of coinmercial

structures across six parcels of land.

29. The Proposed Development involves at least ono parcel that is less than five (5)

acres.

30. The Proposed Development involves tM constraction of approximately 288,000

square feet with over 1400 parking spaces.

31. The Proposed Developinent involves tlie allocation of land for the widoning of a

street, R.otlrack Road.

(0110796U.E1oC;1 ) 6 c P1C -

32. The Proposed I?evelopnient allocates land as an easeinent for the extension and

maintenance of public sewer, water, and storm drainage.

33. The Proposed Development also allocates lahd as open spaces for common use by

owners, occupants or lease holders.

34. As a result, the Proposed Development is both a Subdivision and a Major

Subdivision.

35. The County 1'1atuning Coniniission is aware of the Proposed Development.

36. Upon i-nfonnation and belief, the County Planning Conunission, the County

Eagineer, andfor repxesentatives of the County Executive have been involved in discussions vrith

the Developer regarding the Proposed Development.

37. Indeed, in a September 17, 2010 letter to the Planning Carnm.ission, a copy of

which is attached hereto as Exhibit B(the "Enginccr's Opinion"), the County Engineer inforxned

the Planning Cominission that "it is my enginecitirig opinion that the [Pjroposecl [D]eveloprnent

is within the defiiuition of a subdivision as stated in the 200$ Subdivision regulations and that it

should be processed tbrough the Plmning Commission as such."

38. ln the Engineer's Opinion, the County Engxneer also requested that the `Tlanaaing

Commission talce appxopriate action to process this proposed development following the

Planning Convnission process for major sub&visions." (Emphasis added.)

39. The County Planning Commission's teview and potential approval of the

Propased Development is required by the Subdivision Regulations because the Proposed

Development is a Major Subdivision.

{01107950,DOG1 } 7 C Y -

40. However, the County 1'lanning Commission has not, as of the date of this Petition,

xequired the Developer to submit the Proposed Development for approval pursuant to the

Subdivision Regulations.

41. Further, despite the Engineer's Opinion, as of Apri1 5, =11, the Engineer has

stated that he is mv3ewing the Froposed Developrnent only ui an advisory capacity to Copley

Towriship, and tiot pursuant to the requirements of the Sutxdi-visian Regulations.

42. Upon information and belief, the 13avelopea' has begun preparation of the property

for the Proposed Development, including clearing of land.

THE UNIQUE CHAALLENGES OF THE MONTROSE AREA

43. Tlie County Planning Coznrnission's appraval of the Froposed Developmennt is

required by the Subdivision Regulations, and the County Plar ►eiing Commission's jurisdiction

over the Proposed Dovelopment is further warrantecl to address the unique chalienges of the

Montrose Area, where the 1]cvelopers seelc to consfiruct the Proposed Development.

44. The "Montrose Area" is locatod at or near the interseotion of Cleveland-Massillon

Road and West Market Street in the County.

45. The Montrose Arca has become a significant retail district within the County in

which numerous big-box retailers, small and mid-size retail operations, restaurants, movie

theaters, and other servi.ce providers arc located, including commercial properties owned by

Relators.

46. Over the past 10-15 years, development in the Montrose Area has drastically

incr$ased.

{O110746a!]Oc;1 ) 8 COPY,

47.. Accordingly, the 1Vion.trase Area has been increasingly burdelled in the form of

significant traffio congestion on County, City of Fairlawn, State, and Interstate thoroughfares

all of vrhiah convarge in tir.e Montrose Area.

48. The County Engineer recognized these unique chalicnges in the Bngineer's

Opinion, in which he stated;

This develapment is of regional significancs and should bg reviewed and regulated by rules and regulations of the Summit County Planning Commsssion in addition to the rules and regulations of Copley Township. It is the aancam of this office t17at without the involvement of Sutnmit County that the irnprovements ba the roadways and 'uttersectioru9 in the area needed to prevent trafl:tc delays, increased traffzc accidents and delayed response tirne for emerge-ncy responders may not lae adequately provided.

49. The Montrose Area is also unique because the jurisd.ictions of three goveimmental

entities converge in the Montrose Area.

50. Property located on thc north side of West Market Street falls, for the most part,

in Bath Township.

51. Property located on the south side of Wost Market Street and ea.st of Cleveland-

Massillon Road falls within the City o£Fairlawn.

52. Property located on the south sidc of West Market Street and west of Clevoland-

Massi3lon Road (including tbe property on which the Pxoposed Devaloptnant is planned) falls,

for the most part, in Coploy Townsbip,

53. `[herefore, none of tlsesa thxea govezvnental entities have jurisdiction or oversight

over, or can effectively coordinate the devetopment of the Montme Area as a. whole.

{oi io7%0.a0c.a 1 9 C OPYs

54. The County is best suited to take the leading role xn oversight of the development

of tho Montrose Area, as evidenced by its statutory and regulatary authority, including the

authority granted in the Subdivision Regulations.

55. indeed, the challenges and signifioance of the Montrose Area present issues that

fall sqmely within the County's objectives for the Subdivision Regulations.

56, The Proposed Development, in addition to its proposed size and location, is

particularly illustrative of the challenges assoeiated with the Montrose Area and the need for

County-leve1 oversight,

57. The Proposed Development would be located on property that falls within Copley

Township, but is separated from the retnainder of Copley Township by interstate 77.

58. Therefoie, the impact of the Proposed Development would fall niore significantly

on Bath Township and the City of p'airla.wn, neither of wb.icb have authority to review or

approve the Proposed Development or adequately protect their residents' interests.

THE PA.RTXCYJLAR CONCERNS REGaR.uING TRA,FAC

59. Because of the eonvergence of numerous major thoroughfares in the Montrose

Area and the significant commercial developments located there, traffic in the Montrose Area

has been and remains a particularly significant and teonblesonte issue.

60. Traffic and congestion in ihe Montrose Area affects the health, safety, and wrlfare

of Couuty residents and othecs who travel to and through the Montrose Area, including impacts

on access to police and fire departments.

61. Traffic and congestion in the Montrose Area also affects the numerous

vommffcial znterests that already have been established in the Montrose Area.

101107$6t1.130C;1 } 1Q COPY ,

62. Not surprisingly, as a part af the review of Major Subdivisions, the County

Engincer reviews and issue recommendatians vvithin the County EnSin.eer°s scope af

responsibilities, including traffic and access managemezrt, for the approval of all plans for

Subdivisions. See SCCO § 1103.01 et seq.

63. Traffic rinpact Studies also are required by the County Engineer for Subdivisions

that have access off of County roads to "evaluate the effect of Subdivision traffic with regard to

access manageinent along the frontage of County Roads and adjacent int3ersectionsI,] and address what type of tra£ic improvcments ... will bo requirecl.° SCCO § 1I48.04.

64, The Subdivision Reguiations grant the County Engineer discretion to require a

traffic impact study and, if required, to determine the scope of the required traffic impact study,

mgardless of whether a proposed development is simply a Subdivision or a Major Subdivision.

65. In or around October 2008, the DEvelopeir's interest in developing the RothroclC

Road property far a Wal-Mart Super Store became kriown in the community.

66. At that thne, tiie Developer had cflmpleted a traffic impact study that did not

assess the impact of the pr4posed. Development on the Montrose Area, but rather was limited in scopo to the traffic impact on Rothrock Road and southern interchanges witli Cleveland- j Massillon Road. Notably, the effects on West Market - Street (State itoate 1S) and two

interclianges with interstate 77 were not studied.

67.. The Proposed Devclopnxent wil1 have a sigiiificat.lt impact un €ha surrousrding

area, including the property owned and operated by Rclators.

68. Relators and other similarly situated business and property owners, all of whom

are taxpayers, will suffer significant disruptions in their businesses if the Froposed. Developtnent

101107960.DOC;l I 11 C .PY •

is constructed without the oversight and approval requirecl by ths Subdivision Regutations,

inciuding the requiremelit for a traffic impact study.

69. The general public also wili suffer disruptions in access if the Proposed

Development is consir-Ircted without the or+ersight and approval required by the Subdivision

Regulations, including the requirement for a traffic impact study.

70. Noather the County Engineer nor the County Planning Commission had sought an

evaluation of the traffic issues and chaXlenges associated with the Montrose Area for several

decades.

71. The Cotulty Eigineer and the County Planning CamnissiOA wvere relying on a

1989 study commissioned by the Akron Metropolitan Area Transit Authozitjr, wbieh was

completely outdated and irrelevant because of the subaecluent signiiicmz t development of and

changes to the Montrose Area.

72. In or around October 2008, Relators t'iled suit against the County Planning

Commission and the CDunty Engineer regarding their abuse of discretion in failing to adecluaEtely

ovetsee and plaa for traffic congestion in the Montrose Area, and failing to perform a traftic

study of the Montrose Area.

73. After pxolonged litigation and protracted discussions, the County Planning

Commission, the County Engineer and the Col.rlity Executive agreed to and executed a

Settlement Agreeznent with the Relators.

74. The Settlement Agreemenk, a copy of which is attached hereto as Exhibit A,

reflects the County Planning Commissa.on, the County Engineer, and the Coimty Executive's

agreement that Subdivisions of a certain size that wera subject to the County's jurisciiction and

that were locatcd in the Montrose Area warranted a traffic impact study with a defined scope.

(011079b0.DOC;I ) 12 ^^PY . i:

75. More specifically, the County Planning Conm-ission, the County Enp,inesrt and

the County Executive agreed that tlw County Engineer's statutory authority and discretion to

require traffic impact studies for Subdivisions should be exercised to xequire a traffic -impact

study for "fa]ny proposed retail development'° that is reasonably anticipated to generate 100 new

vehicle trips during any peak hour of the development. Agreement, 14.

76. For such developments, th.e County Planning Commission, tiie County $n&eer,

and ft County Executtive agreed that a traffic impact study would be required to evaluate the

proposed clevelopment's impact on traffic from the site of the proposed development outward to

the first existing intersection in each direction at which only a minimal degxadation in traffic is

anticipated (the "Agreed Traffic Tmpact Study").

77. The Settlement Agreement provides that it vvilf he binding upon the County at the

kime it is executed by the County Pxecutive. Agreement, 12.

7$. The County Executive executed the Sottlement Agreement on or around

December 1$, 2009.

79. The County Planning Commission, the County Engiaeer, and the Relat.ars also

executed the Settlemeu.t Agreement on or around. December 18, 2009,

80. The Proposed Developaeent is a pi-oposed retail development lacat.ed in the

ltrtantroso Area.

81. The Proposed laevelopment.is masonably anticipated to generatc 100 vehicle trip

ends during any pealC hour of the Proposed Development.

82. The Coimty has jurisdiction over the Proposed Devclopment because it is a

Subdivision.

83. The Proposed Development seeks access off ofRotltrook Road, a County road.

{OL10795a.DOC;I ) 13 u '0-py °

94. Relators have repeatedly cieznanded that the County PIaaming Commission, the

County Engineer and the Cotenty Executive subject the Proposed Development to the

requirements of'tlae Subdivision Regulations and require the Agreed Tra^to hnpaat Study for the

Propose.d. Development, including via correspondence on Novetnber 3, 2010, March 14, 2011,

and Apri1 20, 2011.

85. Dowever, despite the Engineer's explicit admission in the Engitteer's Opinion that

the Proposed Development is a Subdivision and a Major Subdivision, ncither the County

Planning Commission, the County Engineer, nor the County Execulive hag required, as of the

date of this Pctition, the Proposed Development to be reviexred or approved pursuant to the

Subdivision Regulations.

86. Further, despite the Engineer's explicit admission in the Engineer's Opinion that

the Proposed Development is a S-ubdivision and a Major Subdivision, neither the County

Planning Commission, the Cotuxty Engineei', nor the County Execut'sve has required, as of the

date of this Petition, thc Dcvcloper to prepare the Agreed Trafl'rc Tmpact Study for the Proposed

Development.

COUNT ONE Mandamus - Caunty ©ver•sight

87. Rela.tors hcreby incorporate by reference the ailegations sct forth in the

paragrapbs above as if fully rewritten herein.

88. The Subdivision Regulations require that any Subdivisions plarated to be

developed in the unhicorporated areas of the County be subject to thc xeviev,r and approval

procedures contained in tho Subdivision Rognlations.

(01107964.DOC;l ) 14 i

COPY'

89. The Connty Planning Curtqnissia4s the County Enginecr and/or the County

Executive have a clear logal duty to carry out tlie mandates of the Summit E"outxty Codified

Ordinmces, includi-ng the requirements and objeatives of the Subdivi.sion Regulations.

9-tl; ii a M^& suhdi:no,o,I, :^^ dlon^ ;n th^ ^1.1b'di'm,ien

Regulations and as aclrnowiedged by the EngirteeLr's C}piznion,

91. The County Planning Cormxtf ssion hag not required tho Developer to submit the

Proposcd Development for review and approval pursuant to tkie Subdivision Regulations.

92. Relators have no adequate xemedy in the ordinary aouise of law with respect to 3

the County Plaimiaig Comnrission, the County Engineer andlor the County Executive's refusal to

carry out the mandates of Part 11, including, but not limited to, oversight of the Proposed

Development.

93, Based on the foregoing, Relators are entitled to a writ of inandamus compelft

the County Planning Commission, the County Engineer and the County Execufive to carry out

the mandates-of the Subdivision ltegulatiorYs as applied to the Proposed Developrnent.

94. Based on the foregoing, Relators are entitled to a writ of mandamus compelling

the County Planning Commission, the Couaty Engineer and the County Executive to assert

jurisdiction over the Propased. Developmeiitpursuant to the Subdivision Regulations.

CQUNT T'VVO 1Vlaudamus -- Enforcement of Settlement Agreement

95. Relators hercby incoiporate by reference the allegations nt forth in the

paragraphs above as if fully rewritten hereiit.

96. The Pmpoaed Developmcnt is of the nature and size as those developments for

which the County Planning Coimnission, tha County Engineer, and the County Executive agreed

that the Agreed Traffic Impact Study was warranted.

{o11rr7960.1}aC;1 } 15 COfi'Y 4

97. The SeMement Agreement requires the County 1'lanning Commission andlar the

County Engineer to ioquire the Developer to prepaa'e and submit an Agreed il^aft!io Innpact Study

prior to the approval of the Proposed Deveiopment.

98. The County Ptanrdng Comuiission, the County Engineer, and the County ;.

Executive have a clear legal duty to carry out the requirena.ents of the Settlement Agreement

relating to the soope ot'tho Agreed TrafTic lwpaat Study.

99. Neither the County 1'aanning Commission nor the County Engiiaeer has required

E± the Developer to conduct the Ageed Traffic l'inpact Study, despite Relators' repeated demands ^: that they do so.

100. Relators have no adequate remedy in #he ordinary course of law witti respect to

the Couxtty Plarmiag Commission's and/or the County Engineer's refusal to carry out the

requixements o£ the Settlement Agreement.

101. Based on the foregoing, ReEators are entitled to aw-rit of mandamus competling

the County Planning Corninission, the County Engineet, and the County Executive to carry out

the terms of the SettEe:rnezet Agreement in their review and oversight of the Proposed

Development.

CQUNT THREI! AncfIlar,y Tempomry Injunctiive Relief

102. Relators hereby incorporate by reference the allegations set forth in the

paragraphs above as if fully rewritten herein.

t03. The Proposed Development is a Major Subdivision that requires appraval under

the Subdivision Regulations before it can be consstructed, if at all.

104. Copley Township should be enjoined from altering the status quo by taking any

action with xespect to the Proposed Development thst is inconsis'taeent with the relief requested by

{O11U7964.i]vC;l } 16 COP1Y.

Relators herein, including, but not limited to, issu.ing zaniug certi6cates or otherwise authaxkzing

the construction of the Proposed Development prior to or outside of the review of the Proposed

Development required by the Subdivision Regulations pending this Court's determination of the

naerits of this Petition. aud the County 145. The County Planning Cornnrissian, the County Enginccr, the status quo by taking any Executive, on behalf oftlle County, should be enjoined from altering that is inconsistent with the relief requested by action with respect to the Proposed Developmmt Relators liereuj, including, but lxot limited to, issuing building permits or otheruvlsc authorizing

the construction of the Proposed Development prior to or outside of the review of the Pmpased

Development xequired by the Subdivision R.cgulation pending this Caurt's determination of the

merits of this petition, 106. Unless Copley Township is enjoined from issuing any zoning certificates or other

c.ertificate9 or permits that would authorize the Proposed Development to be built outside of the reviow required by the Subdivisian Regulatiflns, this Court's ability to render an effective

judp.uant on this Petition will be placed into question. and the County 1n Udless the County Plmuling Commissiorj, the County Engineer,

Executive, on behalf of the County, are enjoined from issuing any buiiding pennits or other

certificates or permits that would autharize the Proposed Development to be built outside of the effective reviewv required by the Subdivision Regulations, this Court's ability to render an

judgment on lhis Petition will be placed into quastion.

17 [011075d0.noC;1 } coFy.-

WiiEREFORt;, Relators demand:

(a) That a writ of roandafnus be issued:

(i) on Count One, to order the County Planning Commissioxk, the County Engineer, and the County Execertir+e to require the Developers to subrmit the Proposed. Developrnent for review and approval pursuant to the Subdivision Regulations before the Proposed Development can be built; and,

(ii) on Count Two, to enforce the terms of tho Settlement Agrmnent agreed to by the County 1'laming Commissian, the County Engineer and the County Executive for the requiremext of a Traff'ic Impact Study of thc scope set forth in the Settlement Agreement prior to approval of the Proposed Development;

(b) That an injunction be issued on Count T'hrea pxohihiting the Respondents from granting any zoning certij'icates, building permits, or other such r.ertificates or permits that would aliow the Propoaed Developmen:t to be constructed prior to a review of the Proposed DeveEopnaent pursuant to tha Subdivision Regulations, pending the Court's detcrminadon of the merits of the kotition;

(d) Such other rclief that this Court deems appropriate.

4Lc. rqCzIQL IVIARK i. WA1.LACH (0010948) LAURA C. MCBRIDE (0080059) CAI.FEB, HALTBR & GRISWOLD LLP 1 400KeyB anlc Center 800 Superior Avenue Cleveland, Ohio 44114-2688 (216) 622-8200 (216) 241-0816 (fax)

Attorneys for Relators Wost Market Plaza Lirnited Partncrship and Montrose Retail Associates Limited Partnership

(07IO796o.DOCI ) 18 Exhibit 11 COPY..,

r,.,;!• , - .. . . .,.: . 5.• ♦: :! _ .. 1N'I'HE OOIJO-T OF APPSAIS ^..; ; _° . '• . . , :^^ -f NINTH Al'pELLATE DIS'1'RICT SUMNIiT COUNTY, dHIO 2412k?RZ0

STAFX'I`^ REL. WESTAA2KI?`I PLAZA „ , . , •.^ , LTMITEDPARTNEitSHT etat., ) CASEHq. } Relators, )

Si]MM1T COT3NTY PLANNING COMMISSION SECOND AMENDED PE'I'1TION et al, POR WRIT OF MANDAMUS Respondents

k,ARTIES

1. Ztelator, West iViarket Plaza I.innited I'artnersbip, is an Ohio Xirnited partnership

with a principal place of business in Bath Township, Ohio, West Marlcet Plaza Limited

Partnersliip owns and operates a shopping center at the intersection of West Market St, and

Cleveland-Massillon Road in SuiEuzdt Coiunty, Ohio (the "°Co-unty") and is a County taxpayer.

2. Relator, Montrose Retail Associates Limited Partncrship, is an Ohio limited

partnership with a principal place of businoss aiso in Bath Township, Ohio. Montrose Retail

Associatos Limited Partnership owns and operates another shoppiag eenter at the intersection of

West Market St. and Oleveland-Massilton Read in the County, and is a County taxpayer.

3. Relators, West Market Plaza Limited Partnership and Montrose Retail Associates

T-imited Partnership, shall be collectively refen-ed to herein as "Relators."

4. Respondent, Summit County Planning Commission (the "Plauriing

Conunission"), is the Planning Conunissian €or the County and is located at 175 S. Main Street,

Room 207, Akron, Ohio 44308. The Commission was establishcd pursuant to Ohio Revised

141304523.13flC;3 ) el 1^ ^^^.::PY, {-

Code § 713.22 and is charged to "vxercise the powers and duties established by general law."

Sumznit County Codified Ordinawc ("SCCO°°), § 141.01.

5. Respnndent, Russell M. Pry, is the County Execut'svc for tbe County (the "County Akron, Ohio 44305. The County Exe+cuti,ve'), located at 175 S. Main Street, 8th Floor, the County pursuant to P.xecutive is the chief exe.cutivc officer for the County, who serves

Article 11 of the County Charter and Ohio Revised Code Chapter 302.

6. Respondent, Alan Srulaalcer, is the County Engineer for the County (the "County

3ngineer serves the County Engineer"), located. at 53$ E. Sou#h St., Akron, Ohio 44311. The >

pursuant to Ohi4 Rcvised Code § 315 and the Summit County Codified Ordinances.

7. Respondent, Copley Township, is an Ohio Township, located in an

unincorporated area of the County (°`Copley TQwnshiia°°}, with offices located at 1540 S.

Cleveland-Massillon Road, Copley, Ohio 44321. Copley Townsbip is joined in tltis action

because it has an interest relating to thc subject of the action, and is so situated such that the

relief sought by Rolatars may not be effective unless Copley Township is enjoined from taking

action inconsistent with this C.vurt's jurisdiction pendix3.g this Coult's determination of the merits

of this 1'etition.

8. This C:nurt has jurisdiction over the matters presented herein pursuant to Section

3, Article N of the Ohio Constitution and Ohio Revised. Code § 2731.02.

THE COI]NTY'S ROLE IN OVEktSEWNGTHE DEVELOPMENT OF SYJBDxV1iSIONS

9. The Coturty has adopted reguiations for th.e review and approval of subdivisions, 11 of the SCCO (the "Subdivision Regulati4ns'). See whiah regu.latians are set forth iu Part

SCCO § 1101.03.

2 {Q 1344523.1]0C;3 ) C ,Y ^ i.

s Ei_

lo. The Subdivision Regulations are administered by the County Planning

Comrnissiotr, the County Engbieer, andlor the County Exeoutive.

11. The Subdivision Regulations are appiicable to all subdivisions of land located

within the unincorporated area of the County. SCCO § 1141.03.

12. Sub€fidvisivns include, in pertinent put, "the iinpro'vement of one or more parcels

of land for residential, commercial, or industrial structures or groups of structures involving the

division or allocation of land for the opening, wideniug, or extension of any street or streets ...;

the division or allocation of land as open sgaces for common use by owners, occupants or lease

liolders or as easements for the extension and maintenance of public sewer, water, starrn

drainage, or other public facilities ...." SCCO § 1102.03(a)(97)(B).

13. The SCCD explicitly provide that the County seeks "to secure alzd provide for

Suzmnait Count}^-- a number of objectivcs in enacting the Subdivision Regulations, including:

"[t]he prvper arrangemcnt of streets or highways in relation to existing or proposed streets and

highways and the tltoroughfare plan;" "[a]dequate and convenient open spaces for traffic,

utitities, access for fire-fighting apparatus, recreation, light and air, and the avoidance of

congestion of the population;" "[t]he oxderty, efficient, and appropriate development af land;"

"[saafe and convenient vehicular and pedestrian movcment;" "[t]he promotion of public healtb,

safety, ccrmfort, convenience, prosperity, and generai welfare, and the protection of the

environment;" aird "[t]ho equitable haadling of all subdivision plats by providing uniforrrr and Developer as procedures and standards for observanee by both the approving authority

defined [in Part 11]." SCCO § 1101.02. be broadly 14. The County also requires that the Subdivisiozx Regu.lations "sba11

coristrued and int.erpreted so as to achieve their essential purposes." SCCO § I10LaG.

{41304523.r]C]C-,3 } 3 C{J P.Y

15. To full"ill the County's objectives, the County subjects both Major and Minor

Subdivisions, as deiined in § 1101.02, to specific rcview procedures.

16. Major Subdivisions are deftned as "[a]ll Subdivisions not classified as a Minor

Subdivision, including but not limited to Subdivisions of more than five (5) lots, any one of

which is less than five (5) acres, or any size Subdivision requiring the creation, widening or

extension of a street or access easement or requiring the division or allocation of land as a ntility

or drainage easement or subdividing platted land to create additional building lots in a recorded

Subdivision." SCCO § 1102.03(a)(99).

I 17. Minor Sulsdivisians aro defiried as a j`Subdivision which is a division of a parCel

of land along an existing public street or road, iiot involving the opening, widening, o£ exteiision

of any street, road, or access easetnent and involving not maxe than five (5) lots, any ane of

which in.a3+ be less than five (5) acres after the origuiaf tract has been co:Enpletety subdivided;'

SCCO § 1.1 U2.03 {a}(1.4Q).

1$. The "CountyPlanning Cominission shall deficrm.ine that a proposed subdivision of

land is a Major Subdivision if it .. . [is] arty size Subdivision requidng the creation, widening or

extension of a street or access casement or requiring the division or allocation of land as a utility

or drainage easernent or is subdividing platteld land to ercate additional building lots in a

recorded Snbdivision:" SCCO § 1103.03(b).

19. Major Subdivisions are eligible for approval pursnant to a four-stage process.

SCCa § 1103.47(a).

20. The four-stage approval process incorporates the ieview andlor approval of

various entities, including the County Planning Commission, the County Engineer, the

{01904523.DQC;3 ) 4 COPY

Department flf EnvironmeRtal Serviices, the 4hio Tnvirmnunentai Proteotion Agency, and the

County Health Departrnent, 21. Tbe first stage of the approval procedures for Maj or Subdivisions is t3ie "Concept

Plan 5tage." See SCCO § 1103.47(b). 22, The Concept Plan Stage requires the doveloper to submit an application for a

"Concept Plan lliscussion" meeting and to submit copies of the concept plan and "[o3ther

infannation that the Staff (of tha County Planning Commission] may request to assist in

understanding issues of the proposed subdivision." SCCCI § 1103.07(b)(l). issiori then transmits the concept plan to the County 23. 'I'he Couatty Planning Conu€ ► Engineer, the County Health Department, the Deparlrnent of Environiaaentai Sexvices, the

Township Trastees, the Township Zoning Comtnission, the Township Z4ning Inspector, the

Township Fire Department, the Township Road Superintendent, and the C°untY Soil and Water

Conservation District, SCCO § 1103.07(b)(2). 24. The Subdivision Regulations' requirements for approval of Major Subdivisions

aiso includes numerous required timelines and additional submittals by a developer secung

approval of a Major Subdivision in the Concept Plan Stago anci throughout the remaining 13uee

stages before approval of the Final Plat.

THE PROPOSED DEVELOPMENT DF A WAY.-Ir+[ART SUPER STORE, SAM'S CLUB WAREDOUSE STQIM, AND GAS STATION

25. In or around June 2010, LRC Development Co. (the "Developer") submitted a

proposal to develop approxim.ately 40 acres of cutiTntly undeveloped land for the canstruction of

a Wal-Mart Super Store, a Sam's Club warehousv store, and a gas station, in Copley Township

(tbe "Proposed Development"). 26. Copley Township is an unincorporated area of the County.

5 [01304523.I)QC;3 1 C P^Y

27. The Proposed Development would be constructed on Rothrock Road, a CousYty

highway, in the "Monfrose Area" of the County.

28. The Proposed Developmant involves the construettion of a group of eommercial

strusctures across six pat^ccls of land. 29. The Proposed Development involves at least one parcel that is less them f'ive (5)

aores.

30. The Proposed Developinent involves the construction of approximately 288,000

square feet with over 1,400 parldng spaces,

sed Development involves the allocation of land for the widening of a 31. The 1'rnpc►

street,ltotln.-ock Road.

32. The Proposed Developrnent allocates Iand as an easement for the extension and

tnainteliance of public sewer, water, and storm dt-ainage.

33. The Proposed Development also allocates land as open spaces for cotnmon use by

owners, accupants, or lease holders,

34. As a result, the Proposed Development is both aSubdivisi.on and a Major

Subdivision.

35. The County Planning Commission is aware of the Proposed Development.

36. LTpon infnrruation and belief, the County Plmtnung Commission, the County

Engineer, andlor representatives of the County Executive haye been involved in discussions vaith

eloper regarding the Proposed Development. the Der► 37. Indeed, in &September 17, 2010 letter to the 1'tanning Comxni.ssion, a true and

accurate copy of which is attached hereto as Exhibit A (the "Fsngineer's Opinion"), the County

En.gineer infornned the Planxiing Coinmis-sion that "it is my engineering opinion that tlw

tOt304521DOC:3 ) 6 co^^ ^

[Pjroposed [D]eveloprnent is within the definition of a subdivision as stated in the 2008

Subdivision [R]egu.lations and that it should be processed thra-agh the Planning Commission as

Slich.': 38. In the Bngineer's Opinion, the County Engineer also requested that the `°Planning

Commission take appropriate actioli to proeess this proposed development following the

Planning Cou unission pro=s for rnajor• subdfvisions." (Emphasis added.) 39. Moreover, during deposition testimony taken in. a related lawsuit on February 10,

2012, the County Engineer confirmed under oath that he believed the P'roposed Development to

be a Major Suladivisiork. Relevant excerpts from the transcript of the County Engitteer's i; deposition testimony are attaclied hereto as Exhibit B.

40, The County plavning Commission's review and potential approval of the

f Proposed Devciopnent is required by the Subdivision. Ragulations because the Proposed

Development is a Major Subdivision.

THE LlNIQUE Cii

41, 'l'he County Plannizrg ConwASsxan's jurisdiction over the Proposed Development

is furtlier warranted to address the unique cha]lenges af the Montxme Area, where the

Davelopefs seek to construct the Proposed Development,

42. The "Montrose Area" is located at or near the intersection of Cleveland-Massil3on , Road and West Market Street in the County. the County in 43. The Montrose Area has 4ecorna a sigaiEcant retail district within which numerous big-box retailers, small and mid4ize retail operations, restaurants, movie

theatets, and other service providers are located, iricluding commuciat properties owned by

Relators.

7 {01304527.i14C;3 ] CORY

44. Over the past 10-15 years, development in the Montrose Area has drastically

increased.

45. Accordingly, the Montrose .Axea has been increasingly burdened in the form of

significant traffic con,gesfaon on County, City of Fairlawn, State, and linterstate thoroughfares -

all of which convergc in the Montrose ,Area.

46. The County Engineer recognized thesc unique challenges in the Engineer's

Opinion, iin which he stated:

This development is of regional significance and should be rsvxewed and rognlated by rules and regulations of the Surntnit County Planning Commission in addition to the rules and regulations of Copley Township. It is the concem of #his of1'ice that without tho involvement of Summit County that the improveme.nts to the roadways and intersections in the area ne.eded to prevent traffic- delays, increased traffic accidents and delayed response time for ernergency reslronders may not be adequately provided.

47. The Ndontrose Area is also unique beeause the jurisdictior,s of three governrnental

entities converge in tle, Montrose Area.

48_ Property located on the north side of West Market Street fal1s, for the most part,

in Bath Township.

49. Propa#y located on the south side of West Market Street and east of Cleveland-

ll!Iass311on Road falls within the City of Fairlawn.

50, Propexty locatod ozl the south side of West Market Street and west of Cleveland-

Massillon Road (including the property on which the Proposed Development is planned) falls,

for the most part, in Copley Township.

51. Therefore, none ofthese three governrnentai entities have jttrisdiction or oversight

over, or can ef#`ectively coordinate the developrttertt of the Motutrase Area as a whole.

101304523.DOG;3 I S ^ PI-Y

52. The County is best suited to tnlce the leading role in oversight of the development

of the Montrose Axea, as evidenced by its statutory and regulatory authority, including the

authority granted in the Subdivision Regulations.

53. Indeed, the challenges and sigmificauce of the Montrose ,Aa'ea present issues that

fall squarely withixi the County's ohjectives for the Suhdivision Regulatzons.

54, The Proposed Development, in addition to its proposed size and locatxon, is

particularly illustrative of the "lenges associated with the Montrose Area and the need for

County-level oversight.

55. The Proposed Development would be located on property that falls within Copley

Township, but is separated from the remainder of Copley Township by Interstate 77.

56. Therefore, the impact of the Proposed Developinent would fall mo;e significantly

on Bath Township and the City of Fairlawn, neither of which have authoraty to review or

approve the Pt^aposed Development or adequately protect their residents' interests.

57. The Proposed Development also seeks access ol'f af Rotluock Road, a County

mad.

THE PARTICULAR CONCERNS REGARDING TRAFFIC

58. Because of the convergence of numerous major thoroughfares in the Montrose

A_rea and the sigificae.t cornrndreial sievelopments l0€ated, there, traf'ic in the Montroso Area

has been and remains a p articularfy significant and troublesome issue.

59. Traffa,a and congestion in the Montrose Area affects the h.ealth, safety, and welfare

of Coun.ty residents and others who travel to and through the Montrose Aiea, including lmpacts

on access to police and fire departnaents.

(01304521DOG;3 } 9 COPY

60. Trafiqc and congestion in the Montrose Area also aftcts the nurnerous

cosnrnercial interests that already have lseezt established in the Montroso Area.

61. Not surprisingly, as a part of the review of Major Subdivisions, the County

Engineer reviews and issues cecorruxrenidations within the County Engineer's scope of

responsibilities, including traffic and access rnanagemcnt, for the approval of a11 plans for

Subdivisions. See SCCO § 1103.01 etseq.

62. Traffic lrnpact Studieg also are required by the County Engineer for Subdivisions

that have access off of County roads to "evaluate the effect of Subdivision traffic with ragatrd to access rnanagensent along the frontage of County Roads and adjacent intersections[J and address

what type of traffic improvements. ... will be required." SCCO §1108.U4.

63. The Subdivision Regulations grant the County Eligineer discretion to require a

traffic impact study and, if required, to detemine tlre scope of the required traffic impact study,

regardiess of vrhether a proposed develapnient is simply a Subdivision or a Major Subdivision.

64. Tn or aiound OctQber 2008, tlae Developer's inteest in developing the Rothrock

Road property for a Wal-Mart Super Store became known in the community.

65. Tha Developer has eosnpieted a traffic impact st.ady that did not assess the impact

of the Proposed Development on the Montrose Area, but rather was limited in scope to the traffic

impact on Rothrock Road and southern interchanges with Clevaland-Massillon Road. Notably, I the effects on West Market Street (State Raute 18) and two intexchanges with Interstate 77 were

not fully studied, nor were traffic counts taken on weekends, traditionally the busiest tiine for

retail establishments such as those proposed frsr the Proposed Development.

66. The Proposed Development will have a significant irnpact on the surrounding

area, including the propcsr4y owned and operated by Relators.

10 {41344523.1700 } CO VY

67. Relators and other similarly situated business and property awners, all of whom

are taxpayers, will suffer significant disruptions in their businesses if the Proposed Dave#opment

is constructed without the oversight and approval required by the Subdivision Regulations,

including the requirement for a traffic intpact study. it

68. The general publio also wiH suffer disruptions in access if the Propased

Dvveloprnent is constructed without the oversight and approval requirecl by the Subdivision

R.eguiations, including the requirement for a tra^ftc impact study.

69. Neither tfie County Enginccr nor the County Planning Conunission had sought an

evaLuation of the trafric issues and vhallciiges associated with the Mrnntrose Area for several

deeades.

70. Reiators hav@ repeatedly demanded that the County Plavning Con-tinission, the

County Engineer and the County Executive subject the Proposed Development to the

requirements of th.4 Subdivision Regulations, including via correspondence on November 3,

2010, March 14, 201 1, .Apri120, 2011, and August 4, 2011.

71. However, despite the Engineer's expIicit admission in t3re Engineer's Opinion that

the Proposed Development is a Subdivision and a Major Subdivision, neither the County

Planning Coixtmission, the County Engincea', nor the County Paceoutive has required, as of the

date of this Petition, the Proposed Developinen't to be reviewed or approved pursuant to tho

Subdivisiort Regulations.

72. -E.Tpon informat

g a Memoramdum of Understanding ("pVIOU"}. Executive and the Developers began negotiatit► 73. A true and accurate copy of a draft of the MOU tllat was rewived by Relators is

attached hereto as Exhibit C.

(0l304523.D0£"^3 ) 11 COPY at

behalf of the County and would not invoi.vc the Sununit County Plaming CorrEmission's

approval and only the "recommendation" af ft County Engineer.

75. The MOU would allow the Developer ta avoid the procedures required by the

Subdivision ltegulations.

76. Then, on October 18, 2011, the County Engineer sent a letter to Copley Township

stating he had "approv[ed],° a traffic impact study pi-epared for the Fmpose.d. Deva[op-ment.

77. A true and accurate copy oi±the County Engineer's October 18, 2011 letter (the

"Engineer's Lstter"j is attached hereto as Exhibit D.

78. The Enginee3r's Letter al.so references aMCID.

79. Next, oii January 4, 2012, Copley Township entered into a"17evelopment

Agreement" xegardii7g the Proposed Developinent.

80. A true and accurate copy of the final, executed Derrelopment Agreement is

attachcd hereto as Exhibit E.

81. The Development Agreement reflects the Engineer's direct involvenaent in and

extensive review of the Proposed Development.

82. Article TI of the Developrn.ent Agreement incorporates the Engincer's "approva!"

of a traffic study as a condition preeorlen,t to the issuance of a zontng certii°icate.

83. Article V, Sectton f designates the Engineer as a "third part[yy" lrenehiciary of the

Development Agreenncnt, and expre$sly authorizes his enfarcement of its iaro,visions.

84. Despite their knowledge and review of the Proposed Development, neither the

County Executive, the County Planning Conimission, aaflr the County Engincer has requizcd the

{413[}4523.E]OC;3 } 12 COPY

Proposed Development to be approved pursuant to the procedures set forth in the Subdivision

Regulations,

85. Meanwhile, a proposed development for a Cordon Food 5ea-vice retail center on

Rothrock Road in the Montrose area C"CrFS Devolopmerlt"} has been designated and reviewed by

the PIanning Commission as a Major Subdivision.

86. The Plaonitig Coroniission approved a preliminmy plaft for the GFS Develppinent

at its regular meeting on ranuary 26, 2012.

87. A request for final plat approval for the GF5 Development is pending and is

scheduled to come before the Planning Commission at its regular zneeting on Apri126, 2012.

88. According to a Ictter to Relators' counsel dated April 9, 2012 from Deborah Matz,

General Counsel for Su=it Cotuity, "the detorminatiort tltat [thc Gp'S Development] would

recluiro review as a major subdivision was made by the Commission Staff in consultatioii* with

legal counsel and the developers [sic] erWraeering consuEtant. Thc determination was based

upon Surnnsit County Codi-fied Ozdinance 1t03.43(b).'° A true and accurate copy of 1Vlatz`s

Agril 9, 7012 letter is attached hereto as Exhibit F.

89. Also according to Matz's Apri19, 2012 letter, °'[t]he [GFS Deve[optnent] was

determined to require major subdivision review based upon need to allocate land to [sic] for the

extension of utility easements ancl to extend a driveway access easennent."

90. Moreover, in an email i-nessage dated October 27, 2011, Rob Henwaod, Larad

Development AdministraEar for Summit County's Department of Commruiity and Economic

Development, stated to John Walsh, an enghiccr affiliated with the GFS I3evelopment, that

"[b]ased on our discussion your project [the GFS Development] will required [sic] to be

(OI304523,DOC;3 ) 13 COPY

submitted for Concept Plan zcview; ' A. truc and accurate copy of Henwood's October 27, 2011

email is attachod hereto as Exhibit G.

91. According to the Subdivision Regulations, the Concept Plan review referred to in

Henwood's October 27, 2011 en7ail is part of the procedure for obtairdng approval of a Major

Subdivision.

92. Hmwoocl's October 27, 2011 email demonstrates that the County, and not the

developer, decides wliether a propGsed develop:rnent is subject to the Subdivision Regulations

and that such deterrn.inatign can ba made wittaout formal application by the developer.

tby jy35:,: t '6anl.a#ioSl #iE1d bLlido dm- G^ ^3L f"k'^tiF#7:'1k^1f, wfl3,dd ;rvr45^r ;3a#r-E ^'s

of land, sttbstwitsaEly less square footagc, and a substantially lower impact on surrounding Wfia

conditions than the Proposed Development.

94. The Planning CommiAsion's handling of tho proposed GFS Development reflects

the Planning Commission's authority and jurisdiction to afffrmatively determine that a proposed

development is a111iajor Subdivision subject to tiic Su.bdivision Regulations.

95. There is n.o ireasanable basis for the Planning Con.tutission's diserepant treatment

of the GFS Development and the Propgsed Development.

CUUNT O,irTE Mandamus -- County OversigIrt

96. Relators hereby incorpoXate by reference the allegations set forth in the

paragraphs above as if £uX1y revvritten herein.

97. The Subdivision Regulations requiio that any Subdivisions planned to be

developod in the unincorporated areas of the County be subject to the review and a.pprovai

praccduzes contained in the Subdivision Regulations.

[01304523.nOC;3 I 14 ^OP, Y

98. 'I`he County Planning Commission, the County Engineer, andlor the County

Execu#ive have a clear legal duty to earry out the mandates of the Summit County Codified I Ordinanees, including ft requirements and objectives of tlw Subdivision Regulations.

99. The Proposed Development is a Major Subdivision, as def ned in the Subdivisioii

Regulations and as acknowledged by the Engineer'g Opinion.

100. The County Plaatning Conunission has not required the Developer to submit the

Proposed Development for review and approval pursuant to the Subdivfsion 1.Zegulations,

101. The County Engineer has not required the Developer to submit the Proposed

Development foic review and approval pursuant to the Subdivision Regulations.

102. The County Executive has not required the Developer to subrait the Propowd.

Development for review and approval pursuant to the Subdivision Regu.lations.

the ordinary course of law with respect to 103. Relators have no adequate remedy ir ► the County Planning Commission, the County Engineer, andlor the County Exeautive° s xefusal to

carry out the mandates of Part 11, including, but not limited to, oversight of the Proposed

Development.

1D4. Based on the foregoing, Rela#oi-s are entitled to a writ of nandamus compeifing

the Couniy Planning Commission, tlie County Engineer, and ihv County Executive to carry out

the mandates of the Subdivisio:a Regulations as applied to the Proposed Develop,uont.

105. Based an the foregoing, Relators are entitled to a writ of mandamus compelling

the County Plaruxing Conimjssion, the County Engineer, and the County Executlve to assert

jurisdiction over the Proposed I7evelopment pursuant to the Subdivision Regulations.

(01304523.DOC:3 ) 15 co^^r.

CQi3NT TWD Ancillary Temporary Injunctive Relief

106. Relators hereby incarporata by reference the allegations set forth in the

paragraphs above as if fully rewritten herein. 107. The Propossd Developnient is a Major Subdivision that requires appraval emder

the Subdivision Regulations bafore it can be constructed, if at all.

108. Copley Township should be cnjoined from sltering the status quo by takhtg any

action with respect to tho Proposed Development that is incansistent with the relief rectucsted by

Relatnrs herein, including, but not limited to, issuing zoning certificates ar otherwise authorizirig ^: . the comtruction of the Pro}aosed Davelopment prioF to or outside of the review of the Proposed

I7evelopment required by the Subdivision Regulations pand.ing this Court's deterrnination of the

merits of this Petition. 4

109. ',E`he C.ounty Planning Comrl"ssion, the County Engineer, and the County

Executive, on behalf of the County, should be enjoined from altering the status quo by taking any

action with respect to the Proposed Developmmt that is inconsistent with the relief requested by

Relators herein, including, but not limited to, issuing building peirnits or otherwise authorxzin.g

the construction of the Proposed Development prior to or outside of thLe review of the Proposed

Development rey,uired by the Subdivision Regulation pending this Court's deteimination of the

merits of tlyis Petition.

110. Unless Coptey Township is enjoined from issuing any zoning certificatea or other

certificates or permits that would authorize the Prolaoseci. Duvelapment to be built outside of the

review required by the Subdivision Regulations, this Court's ability to render an effective

judgment on this Petition will be placed into qu.estion.

16 (D3Q4523.D0C;3 ) ^ PIY

111. Unless #ha County Planning Cotntnission, the County Engineer, and the COunty

Executive, on behalf of the County, are enjoined from issuing any building pernvts or other

cerMeates or perrnits that would authorize tI►v Proposed aevelopnient to be huilt outside of the

review required by the Subdivision Regalatinns, this Court's ability to render an effective

judgm.en.t on this 1'etition will be placed into question.

WHEIt,EFQRE, Relators demand:

(a) That a writ of mandamus be issued on Count One, to order the County 1'lanning Commission, the County Engineer, and the County Execufive to require the Developers to sabmit the Proposed Development for review and approval ° pursuant to the Subdivision Regulations before the Proposed Development can be built; and,

(b) That an injunction be issued on Count Two prohibiting the Respondents from granting any zoning cerkifcates, buildiag perrnits, or other such ccrt€ficatea or permits that would allow the Proposed Development to bv constructed prior to a review of the Proposed Development pursuan.t to the 5ubdivision Regulations, pending the Couirt's determination of the merits of the Petition;

(d) Such other relief that this Court deems apirropriate.

Iui . ALLACH (0010 48) LAURA C. MCBRIDE (0080059) CALFEE, HALTER & GRISWOLD LLP Calfeo Building 1405 East Siacth Streat Cleveiand, Ohio 44114 (216) 622-8200 (216) 241-0816 (fhx) n4waldach@ea Ne. corri lrncbride&ct1, fee.com

Attarneyys for Relators West Market Plaza Limited Partnersixip and l1+Iontrflsa Retail Associates Limited Partnership

(01304523.1)OC;3 } 17 e ^^PY

CERTIFICA^^ OF SERVICE

I hereby certify that a true and geouine copy of the Secand Amended Fetation for Writ of

Mandamus was served via regal&r U.S. mail this 20th day of April, 2012, upon:

Irving B. Sugerman Goldman & Rosen, Ltd. 11 South Forge Street Akron, OH 44304

Attorney forRespondent Copdey Toiunshtp

Mairvin D. Evans Assistant Prosecuting Attot-ney 53 University Avenue, 6th Floor Akron, OH 44308

Atiorney fot• County Respondends

John P. Slagter William D. Dowling Buckingham, Dovli#tle & Burroughs, LLP 3800 Embassy Parkway, 5uite 3Q4 Akron, aki 44333

Sheldon Berns Jordan Berns 'I'imothy J. Duff Berns, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, QH 44122

Addorneys for Intervetaors

no of the Atl^rneys f r Relators

{01304523.DOC;3 ^

I Exhibit 12 COPY +w;^ 31'IT OF STATE OF OHIO ^:;'-Il+-1THL^ COURT OF APPEALS }ss: NINTII JUDICIAL DISTRICT C(?TTNTY UF Si11b1MIT ) 2013 JUL 3 0 PEi 2: 10

STATE OF OHIO ex rel. No. 25883 MARKET PLAZA L.IfD/!1'I`ED PARTNERSHIP, et at,

Relatars

SHMIV[IT COUNTY PLANNING COMMISSION, et at.

Respondents JOURNALENTRY

Upon Relatars' notice of voluntary dismissal, it is ordered that the above action

is dimnissed. All outstanding motions are denied as moot. Cos#s taxed to Relators.

The clerk of courts is hereby directed to serve upon all parties not in default

notice of this ,judgment and its datc of entry upon the journai. See Civ.R. 58(B).

.ludg.,e

Concur: Yilhitmore, I. Hensal, J.

1 Exhibit 13 rvA: • - '

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` he City af Faicjawn, Ohta (,•Faixla%Vd " ur "Appellznt"} aPPe's to tlte ^^virnnnte^tat i Review Ap1âTs Cnsnmission [tê "â^siarc'°] ^^sm ^-ê T^^' 4, 2t]I1 acSjon of the !]irôtox

the "DlrectQ^'), sl^cifc^lly. the issut^lcc by thc ^^virnn^ntst 1'raiectioz^ Ag^^ nY ( of the ^hin ► ' Tê .f^kte^.afsve, iûO EPA Cîf^^^ _ pref€^'ed si^► f a 5cetian 401 ^dQte' a#itl D"ir'^,t:tog o i ^,g ^nt") far ihe tc^ LRC Cogr{ey ^vesto^",^, f,^3^C (^, "App[i 113 lô. 1(13675 (the °`fisâl P^►il") â, was j0urî^ rho f1âl p^rRît, ^t£^l^d î^toêr Lsxhkît "R^si3u(Îc Road îeveioP^t:" - 4, znii. t,y the D^rectnr's at'fiwan t\4ay t#L follovving sds ^r^ t^ ^tasuter 6-1 whieh Pursuantto Ohio Ad^-Iin. co^ § 374 6°5'07, be Iescslve^ ^y tke TaFrlavva is af^r^vcxl bY tYaa lîreetor°s actiatx and ihe re4ev$nt iss^s to nkro"A aggi,3ved partY tkrat vrill br- scfveisely affecto by the Commission: FaiXt^.rra is €sn i

s SUi3l' (}027' s . _ <.'

f' witE► a totai af i^ôsed cornmcrefaE ideveloprssent EssAOwnn as the "Rot3tr^ck Road 13eveE^kM^ fC;a!e^ (3lîa_ FaiFlawn is aPP;4xî^ 3w,000 sqvêe feet in jtimmiL Count^'iz Y the Rothnck Plmd DeveIaPlMnt md owns Gtltain ioc.ated directly amSs the stred from pai'titTjls of 3^mk Road. i``Wflawn tgs sPeciftc MahAuloLtlcc =p4ns'bilifies fur R.otlprocY

RIDad pIIMant to a4t ag^teerênt wiel^ ânnîi ^}LY° tbe permit aPplication raa6mitbecl by Faistaw3 tO n the cDmmcnts regaalal; As set fmth i a^ fiestio^ public ^^g held on Decemêr 2, Ûi^, regarding the ► the Uirêctar's ^'ree ^"or t^ ftnaf ê^t. âi^l^vars and its res idents havg bs^n estc3 urill 13^ adversefy a^^ Âd foF the icliya if thc RotlArack Road deved' by tSac 1]itvtaes issuance of tli.e finai PeTMii. Sgbcif` ^^ and irâ.s€rÂ^re llcvelapsnn^L is caAtstructed, it vvi3l xeq^Ye adrîii^] road, sewex lbeRô^c. ^1e casASfEuCiiOn of L^ deve^c^rrt^llt irf^pmVê4ts wkt^lin ^àir1RST^ÎY's City lir[!f.€s. F7r ineindsAlg Schocalag Run. Fais4a'^'ta is also will aciêrsely ssrApsc^ thr w^t^ways ^ndîn F^rEawn, ,^1 tlus vrat+°rwaY wall 1+^ -{Y± ce and dredÂ^ of Sc#Aacslog ^ respo^rsâble for tlae xleainten$n a adi aâd silting aue to, arrtong ot1Aec tîgs, Ehc -tgd by Yhe canstnictxan, ^ ^S d^xseiy $npax. e-ved anil a^vex'seEy êctcd g^cty is also an ag^ elir Ainatios^ cif tlie ngstream wetlaÊ. faiâvrn as its xesident5 vrlio liwc =Mss tlae s#seet froiu ihe prnpowd sit.e Df the Rothrmlc Itaad

DevdapmMtvrilf be inxpoed xiegativoly lwiy tlie E3evelapI"ent. and iss,,W fa bG res0lved 4Y tko CcmAS.yission enclnrle the I'lie Wlevav.t points of aPpeak

f'nliavri^g: um'&'isaaah1y ar vnlavUllr irA issniarg a s) Whether the i3fteMrvritlx irz:lsactn^ MIA acted to 1.58R^Sitzolxily, acxes ol'weflud, and 1,449 linw-C fect;t afstream in ^jn:al p=nit s m overab,dance of existitig cnsn4'nercial tcCai3 sgace: it pjagosed ama whue tlreeg i aa[sE,Yn. ^ â.^r^^y iA3 issuirtg ^}`JhctÂeg the 17krectar e^^, acte^! as6itârily, ^sea^ b) a^s^S e4h av6^tlance &nd Âêumlx^LEO€t4 ^je rxAaC 'eît that faiE.s to pso^y Qf ►e ssagsta^s tQ the waters of Lê state d+j.c to a^t ina^guat^ au^slys'ss tl>^ ^âlit^ ► ►^ts, ^que=tiie reso^rs^s, goaez1 and ecwârzio jnsti^catia€t far tLc PajecL, pu^^c caz^ne

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set bmia- uitlatvfd aud u=nsESnabic by vit`lue of ft errom ,- /-I I

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I lOtl ]tifih Therd Centet eward(^cal^ae.cvm 2 E IAat State Ssrect 614,621.7102 Ditect ColumUus, oh9o 8215•4245 5102I.1500 PIiona 614.623.001U Fax wwwWfise.cuFrr

August 9, 2012

DA. ^

Janvan Weber Assistant Attoitey Qerlerai Ohio Attomey General's Dffice En.viYonmental Enfvrcement Sectirnx 30 East Broad Street, 25th 1zloor Coinmbus, Ohio 43215-3400 ite: City a f B^ri^+rvn v. Scatt I^a11ys Director of Snviror^ Frote&n et ase No. BRAC 11-776532

Dear 7aneaw.

Fnclased please fmSi a, copy of #he Appedlcant's Motiara ta Distniss Appeal that was filed today with the Ohio Bnvirorlmentai Review Appeals Colnmissio%I„

Chrlstopher M. Ward

Snclasure

co: Nlaurem A. Bre.nnan, F-scl. (via email wlmclnsure) PArrrard 1, ltiegla, Bscl. (via email w/enclosure) Clxtlstapher lanes, Bsq, (via email wleRClosxre)

(0I589555.000;1 ) Clewkcnd I Coluua¢rs EEFORE THE ENVLR4N1VlENTAL RE°VIM APPEALS COMMISSION ST,r1,T1& (3Xt OHIO

CITY Op' FATltI..A,WN, UWQ ) CASE NO. ERAC 11-776532

APPELLANT,

V. APPEL T'9 MOTION TO DISMISS APPEAL SCOTT NALLY, Director of Environmental Protection, and

LRC CE}PLRY INVFSTORS, LLC

APPELLEES.

Pw,-suatt to Ohio ,Ad.n%nistrative Cocie §3746-5 -2S(A), A,ppellant, City of Fairlawn, hereby xespectfiilly moves this Commissicm to grant its mation t.o dismiss this appeal with prejudice.

As the parties and the Commigsion are awaxe, Alypellant's proposed expert witness relating to water qtiality issues uot't^'ied Appellant's counsel on the day of the dcadXine for export witnesa disclosures ,Tutt^ 25, 2012, that ho was unavailable to smve as an expert witness.

Appellant sought additional thne f3ronz the CoFUminion to ioca#v a n$w expert witnese, but atler a

diligent seaXCh for a pxoper expert witness on specific issues, Appellant was unab1e to engage a

xepla.cement wittvss who would lae able to compfete the necessary field work, reseaxch, analysis,

and preparation to testify, in order to supporrt Appollant's claims an appod. This lkas put

Appsilant in a position in wkch it Parwot suf'aciently support its claime on this permit appeo.

Thmfore, Appellant respwti'nlJy disinisses its Rppeal in dias mattex with prejudice.

{p158547&.11OC,I } Res^ ' sub^nitted,

CHRISTOpHBR JONES (0046959) CHRMIOPHIIR M. WARD (0076293) CALFES, HA.L'^HR & GRISWOLD LLP 1100 M 'Ihird Center, 21 East State Street Ceh1lxlintS, Dhx4 43215-4243 ph. 614-621-1500; ta€ 614•621-0010 c'ones calfee.com; cward tr caIfee.o0M

Cnuiisel for ,Appelaant, City of Fairlawn

(01585478,D0C;l } 2 CERUNCA'iE OF SER'fl'IC

I hereby certi.fy that a copy of the €oregoing Appeliala.t's SV^otia^n to Di9^ixs AppeaI was servad via email this 9th day ofAilgust, 2012, upon the follovving:

Janeen Webot Assistant Attorney General Ohio Attorney C"rmeral's Office Unvironmelital Enforcement Sectlon 30 East Broad StreeE, 25th Floor Columbus, Ohio 43215-3400 lNaureen A. Brentxan Baker & Hostetle£ LLP 3200 PNC Center f 1904 E. 9th Street Cleveland, Ohio 44114-3485

{01585478.D0C;] ) 3 Exnibit 15 CEIVED AUG 17 2012

BEFORE THE ENI►tRONitIi1=NTAl. R,EVIEW APPEALS Gt]MMiSSIQN STATE f?K OHIO

CITY OF FAIRLAWN, OHIO Oasa No. ERAC 11-77$532

Appellant,

v. OMER FOR DiSM i^SAL

SCOTT NALLY, DIRECTOR OF ENVIRONMENTAL PROTECTION

and

LRC COPLEY ihiVESTME,NTS, LLC

Appeliees. Is$ued: August 14, 2D'12

On August S, 2412, the Carnmission received APPELLANT'S MOTION TO

DISMISS in the above-captioned matter. Upon review, the Coromissivn finds the

Motion well-taken and rules to dismiss this matter In accordance rrvifh Ohic)

Administrative Code 3746-5-28. A copy of the Jaumal Entry dismissing the lnstant action Is attached.

In accordance with Ohlo Adminlstrnflve Code Section 3746-13-01, the"

Commission inforrns the partias that:

Any party advmely affected by an order of the commission may appeal to the court of appeals of Franklin Cvunty, or, if the appeal arises from an alleged tiolation of a law or reguiatiorti, to the court of appeals of the district In which the v^aiafiort was alleged to have occurred. The party so appealing shall file w'ith the commission a nntica of appeal designating the order from which an appeal is being taken: A copy of such notice shall alsio be filed by the appellant with the court, and a copy shall be sent by oertified mail to the director or other statutory agency. Such natloes shall be filed and mailed within thirty days after the date upon which appellant received notice from the commission of the Issuance of the order. ORDER -2- Case No. ERAC 11-776532

No appeal bond shafl be required to make an apPeal sfFective. THE ENVIRONMENTAL RWIEW

Entered In the Case Fila o€ he Commission this day of August 2012. 3

COPIES SENT TO:

ClTY OF FAIRLAWN. OHIO SCOTT NALLY, aIRECTOR LRG COPLEY CN1lESTQRS, LLC Christopher Janes, Esq. Christopher M.1lVard, Esq. Janear+ R.Webet, Esq. Casey L. Chapman, Esq. Maureen A. Brennan, Esq. BEFORE THE f=NlflRONM.IE;MTAL, RE1 ►lEiN APPEALS COMMISSION STA1'E OF OHIO

GITIf OF I'AiRLAWN, OHIO Case No. ERAC 11-776532

Appellant,

v. JDUR.N& ENTRY

SCOTT NALk,Y^ DIRECTOR OF ENVIRONMENTAL PROTECTION •

and •

LRC COPLEY INVF-STMENTS! LLC

Appellees. . Issued: August 14, 2012

Ort August 9, 2012, the Camrftisslon reoelved APPELLANT'S MOTION TO

DISMISS In the abova-captianeci matter. Upon review, the Commisslen #tnds the

Matian well-taken ancii rules to dismiss this tnatter in accordance with Ohio

Administrative Code 3746-5-28. SEE CASE Fll_.E AND RF-CORD OF AO'l;lON§

Entered in the Journal of the Gammissian this rio, day of August 2012. Exhibit 16 copT

C3U?

^s- C`3 U IN TfCC C[fURT Oi+ COMMON PLEAS ^ wZ. SUMMIT CflUl^r^S^', OHIO ^ co

FAIRWAY PARIc, PROP1rRTI1JS, LLC ) CAS O^ ^ 3825 Fairway Park Drive ^ ^ - 7 4 3 5 Copley, Ohio 44321 vs, } a^^NED TO JIJDGE 13URNFIAM UNRUH ) COPLEY TOViTNSHIP, OHIO ) COMPLAINT 1540 S. CSeveland-Massillon Road } DECLAItA'rOR'Y JUDGMENT Copley, Ohio 44321 l ) ^3R^( D^MAND ^^IDORS^ti Defead.ant. ) HKRON

Plaiutifl', for its claim for relief against Copley Township, alleges:

PARTIES

The suhject of this action is the real propcrty tacate+l an the west side of Rothrock

. ' ' . ...^. 5U1 ^^L)iLj^.4Li I^^.i<4^.'j,.^Y3 ^,^'tJ^'^,•lf^. ^f3^[^l, if1 t[lt: 1^Y44fle^f^tlfi

1500656, 1506468, 1545146, 1505147, 1500458, 1503386, 1501917, and 1501918, tntalit-ig

37.75 aazvs, aixd he,mina#ler i-efei-red to as tb.e. "Site," a inap of 4viiich is hercto attached as l;xMbit

A and incotporatecl by reference hercin.

2. The Site is within Copley'Fownship and subject to its zoning regulatioo. COPT

3. Plaintiff is the owner of tixe real proper€y loeated at 3826 Fairway Park Drive, also

lcnown as parcel 1500073, the entry to which proper€y is directly across Rothrock Road from the

5ite, a map of which is attached as Exhibit B and incorporated by ioference herein.

4. Plaintiff will be especially damaged by thc proposed use of the Site described

herein becauso of an increase in traffc congestio% noise and other activities along with security

and stortn water =nagernent issues which will endanger cealth, safety, and welfare.

p'ACTUAL ALLEGATIUNS

5. Piusuant to Section 519.02 of the Revised Code, Copley Township has enacted

The Zoning Resolution of Copley Township, Surnmit County, Ohio (E'the Resolution"), -

6. Pursuant to Sectioix 301-3 of the Resolution, Copley Townshiip includes a map

indicating the clistricts and their boundary lines as pait of the Resolution, a copy of wuich is

attacbed as Exhibit C and incoxlaorated by refcrence herein.

7. The Resolution ccmtairis provisions for five different types of Commercial

Districts, including C-3 Conarnercial and C-4 Cornmerciai.

B. The Site is located in the C-3 Commercial District in the north-central part of

C.opley "1"ownship, which district is bounded on tho south and west by Interstate 77, on the north

by Medina Road, and on the cast by Rotlirock Road, wbich area is depicted in the detail of the

Copley Township Zoning Map, attacbed as Exhibit D and incorporated by reference herein.

9. The portion of this C-3 Conunercial District to the north ol'the Site is comprised

of parcels 150055, 1055960, 1504917, 1500955, 1507030, 1502926, 1505296, 1505154,

1501013, 1505155, 1505647. 1502154, 1507315, and 1508027, and is hereinatter referred to as

ihe "Sanple C-3 District," a map ol`which is attached as Exhibit E and incorporated by reference

f harein. cop

10. A C-4 Commercial District is adjacent to the east nf this C-3 Comnlercial District. 11. The portidn of this C44 Commercial bistrict bounded on the north by Springside and Brookwall Drives is cornprised of parcels 1505314, 1507085, 1507086, and 1507149, and is

hersinafter refex7red to as the "Comparison C-4 District," a map of wliicb is attached as Exbibst F

and incoaporated by refurence lrerein.

12. Seation 423-1 of the Resolution states the purpose of a C-4 Commei^cial District: This District is established to include activities, that because of their nature, e11GOi.zla ^S tr&ffC Con estl4n ptCrlfLTSg problems, storage pro6lems or catain ot11la activities that could endatrger the health, safety, welfaro of residents and are, therefore, best dis ' ishcd fram other commercial activit .(Ernphasis added.)

13. Section 422-1 of the Resolution states the purpose of a C-3 Commercial District:

This District is established to make provision for a pxincipal shopping axea of eamnaunity andlor regional impoi-tance to the multi-purpose shopper, whGre concentrations of CoMaTison sho in may be found in quantity. (lanYphasis added.)

M. The six buildings in the Cornparison C-4 District are as follows: 167,750 square

feet Retail Double Oecupancy (JC Penzry and Levin Furniture); 112,160 square feet Retail Single

Occupancy (ilome Depot); 94,765 square feet Cinema (Regal) and Retail5tores (World Market

Sleep Source, atid. Jenny Craig); 85,040 square feet Retail DauUle Occupancy (Dick's Sparting

Goods and Staples); 21,000 square feet Refiail Double Qccup`ncy (Carriage House and Berean);

and 14,550 square feet Restaurant (Yellow Tail), See Exhibit G, attached, and incorporated by

I reference herein.

15 The four pars.e3s in the Coniparison C-4 District house I I retailers. 5ee Exhibit G.

16. The eleven buildings in the Sample C-3 District are as follows: 750 square feet

Car Wash; 1300 square feet Convenience Food Market (BP); 4000 square £eet Retail single

pccupancy (Sherwin-Vi+'illiams); 4449 square feet Retail Single Occupancy (Migiui); 6975 copt

square feet Retail Single Occupancy (Danr4y Vegh's); 9844 square feet Restaurant (Cracker

Barrel); 15,130 square feet Retail Single Occupancy (Golf Galaxy); 15,414 sqaare feet

HotellNlotef (Super 8); 28,224 square feet fIotelllMatel (Econ.oLodge); 30,220 square feet

Discount Depar[ment Store (Gregg);H.H. and 45,000 square feet Retail Single Occupancy (Best

13uy). See Exhibit il, attached, and incorporated by reference herein.

17. Of the 14 paroels in the Sample C-3 District, six parcels have been developed for

-and louse--sevenxetailers ("Sample C-3 DistrictDeveloped Retail"). See Exlu'6kt H.

78, The Compatisocr C-4 District houses eleven retailers on 41.59 acres, for an

avorage of 3.78 acres per retailer.

19. The Sainp[e C-3 District Developed Retail houses seven retailers on 13.06 acres,

I for an average af 1.87 acres per retailer.

20. The average retailer size inthe Comparison C-4 Dishict is 43,701 square feet.

21. The avei-age retailer size in the Sample C-3 District Developcd Retail is 14,664

square feet.

22. The largest square footage of any retai[er in the Saznple C-3 District is 45,000

square feet (Best Buy).

23. The largest square footage of any retail structure located in aijy C-3 Commercial

District in Copley Township is 45,000 square feefi (Best Buy).

24, A 283,411 square feet double aceupancy shopping center, consisting of a 156,104

square feet retaiter and a 127,307 square feet retailer, is proposed for canstiuction on the Sitc and

is the subject of ongoing effoi'ts by Copley Tawnsbip officials. COPT

25. In October 20(36, Copley Township offici.als received a Traffic Impact Study

regarding the proposed development of the Site. Pages i tlu-u 3 of this study are attaclied as

Exhibit I alxd incorporated by reference herein. 26. . On October 30, 2006, Copley Township Legal Counsel received a lctter and

attaehed mesnorandum that had been discussed in a mceting outlining the issues relating to the

proposed Rothrock development, whicli memorandum describes the Site as within a"C-4 zoning

category." A copy of the letter and memorandum are attached as Exhibit J and incorporated by.

reference liercin. uary 22, 2008, Copley Townslhip Legal Counsel and Copley Township 27, On 3ar► Adniinnistrator, Peggy Spraggins, received via email a draft letter to tltc Copley Townsltip

Trustees for their i^eview, regarding the Site and a'L'ax TncivmaEt Pinancing proposal for a

proposed Wa1-Mart development, a copy of which is atteEChed ae Exhibit K and incorporated by

reference herein. The Resolution became effective in 1986 and lists "variety stara" as a

peimitted use in a C-3 Commercial District. The plaintiff alleges that superstores similar to Wal-

Mart in excess of 200,1000 sclua:t-e feet were not in existence in 1986 and that Wal-YViart is a

d.apartment store or mass rnarketer and not a variety store as defined in the ResolutiorL

28. On ,iuue 25, 2008, Copley Township Ada3inistrator, Peggy Spx'aggins, exchanged

emails regarding her effort to help secure funds from the Ohio Department of Development for

the proposed retail developrnent, a copy of which is attaclted as Exhibit L and incorporated by

reference herein. CU PY

COUNT 1 (DECLARATORY JUDGMNT--PROPOSED V1DLATIOl*I OF SEG'I'YON 4224 OF TAE RESODUT€E}N GOVERNING (;-3 COiVRME RCIAL DxSTRYCTS)

29. Plaintiff restates all the statements and allegations contained in the previous

paragraphs as if fully rewritten herein.

30. Plaintiff brings this claim pursuar►t to Section 519.24 of tlie Rcvised Code and

Section 902-1 of the Resolution for the purpose of preventing the proposed unlawful location,

exection, constrnction, or use on the Site.

31. Plaintif€is an adjacent land owner who would be espccially damaged by violation

of the Resolution.

32. Plaintiff is relieved froin any obligation to pursuc administrative remedies Ilirough

defendant Copley Township because Section 902-1 of the Resolution, in accordance with

Section 519.24 of Flie Revised Code, provides:

In case any building is or is proposed to be located, erected, constzucted, *** or used in violation, of any provision of this I Zoning Resolution or suppleznents thereto, *^ * Euiy adjacent or neighbaring property owners who would be especially danlaged by such violations, in addition to other remedics provided by law, rnay institute iujunction, inandamus, abatement, or any other appropriate action or proceeding to prevcnt, enjoin, abate or remove such unlawful location, erectian, construction, reconstruction, enlargemCnt, changc, maintenance or UsB.

33. Section 422--1 of the Resolution states the purpose of a C-3 ConYmercfal District:

This District is established to make provision for a principal shopping area of comsnwiity and/or regional importancc to the inuiti-purpose shopper, where concentrations of compar'rson shopping may be fouzad in quantity. (Emphasis added.) co

34. The Sample C-3 District Developed Retail--which is within th.e saFSre C-3

seven retaxlers on 13.06 acres, for an Cornmercial District as, and adjacent to, the Site--houses

avera.ge of 1.87 acres per retailer.

35. The proposeti develaprnent. of the Site houses two retailers in 37.75 acres, for an

average of 18.88 acres per xetaifer.

36. The comparison shopping within this proposed development af the Site would be

90% less corlcentr•ated than the Sample C-3 District.

37. The proposed development of the Site, zoned C-3 Commercial, is in direct

contravsmtfon to the stated purpose of a C-3 Comttaeccial District.

38. The proposed developmtmt of the Site, zoned C-3 Corrunerciai, is in direct

cantravention to present application of Section 422-1 of the Resolution to the existing

development of C-3 Commercial 1]istricts, as evidence.d by the Sample C-3 District atrd,

particularly, the Sample C-3 District Developed Retail.

CQtINT2 (DECLARATORY Jitl}GMENT-STATUS OF'Tl-IF PROPOSED DEVELOPMENT UNDER SECTION 423-•1Olf+" THE RESQLXlT1DN GOVZR.NING C-4 COMMERCIAL DISTRICTS)

39. Plaintiff restates a!1 the statements and allegatians eontained in the previous count

as if fully rewritten herein,

40. Sec#ion 423-1 of the Resolution statea the purpose of a C»4 Commercial i.]istrict:

This Distlxct is established to include aclivities, that because of their natum encourages traffic congestion, parking problems, storage problems or certain other activities taiat could endanger the health, safety, welfare of residents and aiv, tl3erefore, best disti ished from other coiumercial activi .(Emphasis added.)

41. Thc average building size in the Coiliparison C-4 District is 89,903 square feet. ^ ..^...... 5 (

42. The largest building presently in the Comparison C-4 District is 167,750 square

feet, and houses both I.evin Furniture and JC Penny.

43. The next largest building preseitfy in the Comparison C-4 District is 112,160

squaro feet and houses klorrte Depot

44, If prstposed for t13e Comparison C-4 District, the proposed 156,104 square feet

and 127,307 square feet buildings would lte the second and third lalWt buildings.

45. If proposed for the Comparison C-4 District, the proposed 156,104 scluare 1'cet

and 127,307 square feet retailers would be the two largest -retailers.

46. The average building size nt the Sample C-3 Disttict is 14,664 square feet.

47. The largest squarfl footage of any retail structure in any C-3 Commercial Dist3ict

in Copley Towaiship is 45,000 square feet_

48. The average building size in the proposed development of the Sxtc is 141,706

square feet: 9.7 times larger than the aver.age builditig in the Sample C-3 District and 3.i tinies

larger than any retail structure in any C-3 Conunerciat District in Copley Townsliip.

49. Due to its size, the proposed development of the Site is best distaYguished from

o[b.cz cotnrnercial activity; it must be situated in a C-4 Cornmercial District; it cannot be situated

in a C-3 Cotntnercial District.

50. SeGtioli 423-1 of the Rcsolution stat.es the purpose of a C-4 Commercial District:

This District is establishEd to include acti-vtties, that because of their nature, ettcottra es traf"ic con estion, parking problems, storage problerns or certain otller activities that could endanger the health, safety, welfare of residents and are, tlterefot•e, best distinguisteed from other commercial activity. (Em.phasis adtled.)

E co

(Rothrock Road and SpringsideJBroolcwall Drives) xud. two perpendicular roads (Springside and

Flight Memorial Drives) foz an average building size ot'82,544 square feet.

52, The Sample C-3 District is immediately serviced by one parallel road (Rothrock

Road) and two perpen.dic,ular roads (Rothroclc Loop and Spi-ingside Drive) for an average

bnildhig size of 14,664 square feet.

•53. The proposed development of the Site would bc irnmed.iateiy serviced by one

three-lalie road (Rotluock Road) for ais average building sizc of 141,706 square feet.

54, Tbc average building size ut the proposed deveiopment of the Site is 9.7 times

larger than the average building in the Sample C-3 District, but would be sexvxced by one tluee-

lane road.

55, Due to the tra£fic congestion such massive structuxcs would cause, the proposed

development of the Site is best cl'€stinguished from other commercial activity; it must be situated

ui a C-4 Commercial I)istriet, it canxiotbe situated in a C-3 Cornmercial District.

COUNT3 (DECLARATORY JUDC1ViENT-PRO1'OSEII GASOLINE SERVICE STATION ON THE S1TE)

56. Plaintiff restates all the statements and allegations contained in tlie pxevious

counts as if fully rewritten herein.

57. Section 202 o#'thg Resolutioir, entitled "Definitions," defines a°gasolilie service

station" as follows:

Structures and premises where gasolinc, oi.l, grease, battcxies, tire an.d motor vehicle accessories may be supplied and dispexisec3 at retail *** COP^

58. The proposed develapment of the Site includes au 8 pump gasoline service

station. See 8x-hibat G,1V,[etnorandum.

59. Section 422-3 of the Resolution addresses conditionally pemvssil•71e uses in a C-3

Cornrnercial District, and provides.

The Board of Zoning Appcals may issue Conditional .Zoning Cerbificates for uses listed hereiu subject to Article VIII, Section 801, $01-2, -3, -4, the general requirements of Section 802-1, and the specific requirements of Subsections 802-2 as referred to below: W** D. Gasoline Service Station, subject to Subsection $02-2-105, -10?, --123.

60, Subsection 802-2-107 states:

Such developments shall be located on major thoroughfares flr at intelsections of major andlor collector thoroughfares.

61. Section 202 01' the Resolution does not define "maj oz tliorou,ghfare" or "collector

thoroughfare;" however, it dehnes "thoroughfare" as "[a) street or alley."

62. Sectian 202 of the Resoluti4n defines "street, arterial," °street, collcctor," and

^ "street, local collcctor.°

63 Section 202 of the Resolution defines "street, arterial° as follows:

This class of street brings tra€fi.c to and fronx expxessways and other Arteria]s, and serves tlasse major movcinfmts of tiaffic within or through the Township xiot served by expressways, .A,rterials interconnect the principal traffic generators and higli-voluine corridors that connect within ihe Township and rural areas foa• long and through traffic trips."

64. Section 202 of the Resolutiou defines "street, collector" as follows:

This class of street serves the internal traffic movement within an area o£the Township, such as a subdivision, and connect this area with an 1lrterial system. Collectors do not handle long through trips and are not, of necessity, continuous for any great length. co

'fhis principal difference betwcen Coll.ector and ArtmtRl streets is the Iength of tile trip tltey accoinrnodate.

65. Section 202 of the Resolution defines a"sti•eet, Iocal callector" as folIows:

This class of street serves the intcrnal traffie movement vvithin areas such as; major subdivision, inclustrial areas md co,nmercial areas and connect witir other collector streets.

66. "Major thoroughfare,° as used in Subsectxon 802--2-107 of the Re.solutiQn shoulcl

be given the sarne meaning as "stTeet, arterial," as defined in Section 202 of the Resolution.

67. "Collcctor thoroughfare," as used 'ni Subsection 802 2-107 of the Rewlutraii

sliould be given the sarne meaning as "street, collector," as dcfined in Section 202 of tlie Resoiuteon.

68. Rothrock Road is a collector thoroughfare; it is not a majoi thuroUghfare.

69. Fairway Pai* Drive is a strect, lacal co llector; it is not a collector tltorou.ghfare.

70. Because the Site is not located on a major th.orou.ghfsre or at the intersection of

major andlor collector thorough.fares, a gasoline service stntion is not a conditiozzIiy pe;missible use for tlie Site.

71. Subsection 802-2-I23 states:

Such uscs sliall be pemlitted under tlia following coilditions:

A- A-ovid.ed that such facilities be located at the extrernity of the busincss districts so as not to interfere with the pedestrian interchange, between stares in the district and provided furtbex, that it would iiot Iimit expansian of the pedestrian-oriented facilities.

72- The Site is ioc.ated in the rniddle of tlic C-3 Cornrr;ercial District; the Site is not at !t ic extremity of the bnsin,ess district.

73. Because the Site is nvt at the cxtremity of the bnsinms district, a gasoline seivice

flS1 ation is riot a conditionally pennissible use for the Site. ^ _. . I

COPY

WMEREFOXtE, Plaintiffdernands that this Com-t: 1. Pursuant to R.C. Cltapter 2721, R.C. Seciaon 519.24, Section 902-I of the

Resotution, and Civ.R, 57, det,em,ine the meaning au.d c,anstructiot) of Sections

422-1, 423-1, and 422-3 and Suhscctions 802-2-107 and 802-2-123 4fTlle Zoning

ResoIution of Copley ToW11ship, Sumnut County, bfiio and deelal-e the riglats of

Plaintiff a„d status of the teal I)roperty located on tI1e rvest side ofRothrock R,a$d,

in tlia Township of Copley, County of Summit, State of pl-lio, and known as

parcels 1502633, 1500656, 1506468, 1505146, 1505147, 1500458, 1503386,

1501917, and 1501978.

IL DecIarc that tlle maximum retailer size in a C,3 Corrut,er£ial District is 45,000 sqttare teot;

II!. Declare that the maxiinuni retail buildiiig size in a C-3 Commeraial District is 82,544 square feet;

1V. Declare that a develapmeQt, with an average retailer size of 141,706 square feet,

violates Section 422-1 of The Zoning Resolution of Copley Tow2iship, Suinmit Coutity, Ohio;

V. Declare that a developrrient, with an average retailer size o€141,70b square feet,

must be situa.ted i,i a C-4 Cvlntnerci.ai District, and cannot be situated in a C-3

Corrxmeraial Disti7ct, under Sectio-as 422-1 and 423-1 of The 7ortiizg Resolution

of Copley Township, Summit County, Ohio; VL Declare that a gasoline service station is not a conditionally pernii$sible use for the Site.

VIT. Award PlaintitT reasonable attarney's fees and costs; and ...._f . .. .. cop

VIII. Grant such other relief in law and equity xs this Couit demjs appropriate under

the circuulstances.

Respectfii11y submitted,

RUPORT CO., L.P.A.

SY; Scolt H. R OD0732Q) A erts (^Q08I^65} Attorneys ForPlaintiff 370G Embassy Parkway, Suite 200 Aluon, Ohio 44333 {330} fi66-5S55

J1URY DElVYANll

Pursuant to Civ. R. 38, Plaintiff hereby dmauds a trial by jury in the above-entitlr.d. acfion,

C' ^^n

R port Exhibit 17 Lrr%p1

IN T1Y, COURT QF COMMQNPLEAS 2.at sUNMT CooNTY,.olHo ^ I 7463 g,M^W I'ERTI + S, 1.1.C, ) CASE NO 38 ^^kti^^ ^rtrre } Copley, Ohio 44321 ^ "ASRNED TO JUDGE STORMER I'lai^tti#i', ) • i vs. coiP ED TO JU.DGEST^'bAMER.._ FOR i.N.1TTNCTIVE RELIEF AND LRC DEVELOPMENT COMPANY, DECLARATORY 7UDGMSNT LivC, c/o Marvin I. Droz, S.A. KaY DgI,ANI^ INP^1^^ Q.HB^.^.^'aN 1585 Frederick Boulevard Akrun, Dlira 44320

and

I,RC COPLEY INVESTORS, LLC, c/o ll'Iarvin I. Droz, S.A. 1585 Frederick E«ulew►rd Akron, Ohio 44320

and

I.,RC-iV,l ROTHROCKI.NVESTOlt,S, LTI)., c/o Andrew R. Duff, S.A. 159 S Main St Key Building, 6tli Floor A[cron, Oitio 44308-1322

s►nd

iYIA.IZIIOFER IIEVELaI'MENT CO., LLC, c/o BDB Agent Co., S.A. 3800 L, mbassy Parkway Snite 300 Aka-on, Uliio 44333

and

f copi

COPLEY TOWNSHIP, OHIO, ) 1540 S. Cleveland-Massillon Road ) Coplay, O1tia 44321 ) ) Defeeidants. )

1'iaintiff, Fairway Pailc Properties, LLC S°`Faisway Park'), for its clainis for relief,

alleges:

THF PARTIES ANZ? THE SITiv

1. L>efendant, LRC Copley Investors, LLC, is the owner of real propert}f located on

the west side of Rothrock Road, in the Townsliip of Copley, County of StEmmit, State of 4hio,

lcnown as parcels 1.505147,1 5 05146, 1500458, 1503385, 1501918, an d 1501917.

2. Defenclant, LRC-M Rotllroclc Tnvestors, Ltd., is tiie awner of i-eal property located

on tlie west side of Rothrock Road, in the Tawnslrip of Copley, CouDty of SUn]t7lSt, State of

Ohio, known as parcels 1500656 and 15026i3.

3. Defendant, Marhofer :C)evelopment Co., LLC, is the owner of real property

locafied on the west side of Roihroclc Road, in the Towiisliip of Coploy, C'.aunty of Stsmmit, Sta(e

of Ohio, known as parcel 1506468.

4. Defendant, Copley Towiiship, is a potitical subdivision of the County of Su1limit,

5t.-lte of Oh io.

5. The sribject of this action is the real property described in pai-agraphs I through 3

herein, totaltng 39.25 acies, l;ereiiiafter ret:'eired to as tl>le "5ite,'• and slZ orvn in Exhibit A,

attached horeto atid incorporated lierein.

6. The Site is witliire Oopley TQwnshil) and subject to T1>ie Zonitig ResoluCion of

Copley Townsliip, 51u-ninit Co-tulty, Ohio C„the Resolution").

2 C^PY

7. On or aboiit 7oike 16, 2010, Defendant, LRC Developineiit Conzpflny, LLC,

subrnitted a Site Plan to Cogley 'Pownslvp for developnient of the Site; on or about October 20,

2010, a Revised Site Plan was submitted to Copley Tvwnship. Copies of tbe cover pages of the

Site Plan mad Revi.sed Sita Plan are attached heret-o as Bxhibits 13 and C, respectively, and

> I4 incorporated heiein. The Site Plat1 and Revised Site plan shall-be referred to, collectively, as the

"Site Pla«."

8. FaiE-way Park is the aw"er of real pxaperty located on the east side of Rothrock

Road, in thc Township of Capley, CoLajity of SuMn3it, State of Ohio, cominoiily lalown as 3826

Fairway Park Drive, also larown as parce11500Q73 (the "Fairway PArlc i'roperty'l.

9. The Fairway Park Property is located directly across Rothrock Road frotn the

Site, thereby making Fairway 1'arlc an adjaceut or neighborin.g landowner.

10. Fairway Park will be especially damaged by the proposed tsse of the Site

described herein because of an increase in traffic congestion, noise, and otlier aetivities, aion;

with security and storm water nanagelnent issues, whicli will enclmiger tl3e healtl7, safety, and

1 welfare of its residents.

FACTUAL ALLEGATIONS

11. Pursuant to Section 341-3 of thc Resolrition, Copley Townsltip i iIcludes as part of

I the ResQlution a map indicatiiig the districts and their boundary liiies, a copy ol' which is attacheck

11 hereto as.Exlai.bit D and inaolporated by reference herein.

12. T13e Resolution contains prvvisimis for five diftereat types of Commercial

I I Dzstricts, inalading C-3 Commercial aLid C-4 Caminercial.

3 copy

13. Section 422-1 of the Resol'ation states thepurpose o£a C-3 Commercia1.13istrict;

Tl-^s District is established to make provision for a piincipal shopping area of cominuiuty and/or regional importance to the multi-purpose slZopper, where conaentrations o1' cor:zuarison slio in nn.ay l^e found ir^ quantity. (Emphasis added.)

14. Seclioit 423-1 of the Rnsolulion states the purpose of a C-4 Conlmerciai Disfrict:

This District is established to include activities, that becatise of their tiature, or.icotuages traffic co1199-stion parking probletiis, storage problems or certain other activities that could erEdanger the he2dfla , safety, welhru of residents and are, therefore, best distinguishedfioiii othercomn7ercial activi . (Enipbasis added.)

15. Thc Site is located in the C-3 Conunercial District in the noilh-central part of.

Copley Township, which district is bounded on the soutEi aiid west by Literstate 77, an klze noi-th

by Medina Road, and on the east by Rothroclc Road, Whlch area is depicted in the detall of the

Copley Tovniship Zoning Map, attached hereto as Exhibit E and incorporated by refey{nice

. liereirr.

16. The reniaii2iitg portioii of this C-3 Cornmercial District to tYie north of ihe Site is

cornprised of parcels 1500956, 1055960, 1504917, 1500955, 1500957, 507030, 1502926,

, 1505296, 1505154, 1501013, 1505155, 1505607, 1502150, 1507315, and 1508027, and is

I hexeinafler referred to as tlie'"Sample C-3 District,° a map of which is attached hereto as Exhibit

IF and inco rporated by reference lierein.

17. A C-4 Coriurierciai District is adjacent to the cast of this C-3 Carnmeicia] Aistrict.

18. The portion of this C-4 Coinniercial District bounded oii the 3iorth by Springside

land Brookwaill Drives is conipt'ised of parcels 1505314, 1507085, 1507086, aiid 1507109, aild is

I 17ereinafter referred to as the "Comparison C-4 District," a map of which is attached hereto as

I Exhibit G and incorporated by reference herein-

4 C10PY ;

19. The eleven buildings in the Sample C-3 District are as follows: 750 square feet

Car Wash; 1300 sqtEare feet Convenience Food Market (Bl?); 4000 square feet Retail si»gle

Occuprujcy (Sherwin-Williams); 4448 square feet Retail Single Occupancy (Migun); 6975

square feet Retail Single Occupalcy (Danny VeglYs); 9844 square feet Restaurant (Cracker

Bulel); 15,130 square feet Retail Single Occupancy (Golf Galaxy); 15,414 sqtiai-e feet

HateIlM.otel (Bayanont Inn & Suites); 28,224 square feet flotellMotel (1;conoLodge); 30,220

square feet 17iscourit Department Store (H.H. Gregg); and 45,000 squam rtet Retail Siiyglc

Occupancy (Bvst Buy); the average building size in tlie Sample C-3 District is 14,664 square

fect: See Exhibit R, attaclied hereto and incorporated by referetice harein.

20. Of the 15 parcels in the Sainple C-3 Distiict, six parcels l(avo been develope€l for-

-xuid housc--seven retailers ("San}plc C-3 District Developed Retail"D,

21. The six buildiags in the Coir►parison C-4 District arc as follows: 167,750 square

I feet Retail Double Occutpancy (JC Penny aiid Levin Furniture); 112,160 square feet Retail Siiigle

Occupancy 9-tonie Depot); 94,765 square feet Cinema (Regal) and Retail Stores (World Market

Sleep Source, aizd fejzny Graig); 85,040 sqliare feet Retail Doubl.e Occupancy (Diclc's Sportina,,

IGoods aid Staples); 21,0£10 square feet Retail Double Occupancy (Berean and vacant); and

14,550 sqLiare feet Restaurant (Yellovir Tail) ; the average buxlcling size in the Conipalisou C-4

District is 82,544 square feet. See L+xhibit I, attached hei^eto and incoiporated fio-y reference

I herein,

22. The four parcels in the Conzparison C4 District house 11 retail spaces.

23. The Santple C-3 District Developed Retail ltouses saven retailers on 13.06 acres,

I for an average of 1.87 acres per retailer.

5 ^\ ^\^4r

^' ^V n f L

24. The Coniparison C-4 District housss eleven retail spaces an 41.59 acres, for an

average of 3.78 acres per retailer.

25. The average retailer size in the Sarnple C-3 Distric€ Developed Retail is 15,296

square feet.

26. The average retail space in the Cornparison C-4 District is 43,701 square feet.

27. The largost square footage of any retailer in tho Sample C-3 District is 45,000

square feet (Best Buy).

28, The largest square footage of a3iy retail structure located in any C-3 Cnrnmercia]

District in Copley "I"9w17ship is 45,000 square feet (Best Buy).

29. The Site Plaii proposes a 284,173 square feet, do€ible occupancy shopping center,

consisting of a I47,846 square feet retailer and a 136,367 square feet retailer. See Exhibit J,

attaclied liereta and iiicorportited by refercuce herein.

30. The Site Plan further proposes a fuel station be located oii the Site. See Exhibit

K, attached hereto and iiicoiporated by reference herein,

COUNT ONE 1NJUNCTZVE RELIEF TO ENJOIN VIOLATION OF SECTION 422-1 OT THE RESOLUTION GO'VFRItTI1V0 C-3 COMMLR.CIAL DISTRXCTS

31. Plaintiff incorporates all stateinents and allegatioris contained in the pravi4us

paragrapbs as if fully rewritten herein.

32. I'lai,ntiff brings this claim piirsuant to Sectioii 50.24 of the Reviped Code and

Section 902-1 of tlae Resolution for the purpose of preventing the proposed unlawful location,

erectiori, construction, or usa on the Site and seeks injunctive relief pursuant to Ciwii Rule 65.

33, Plaintiff is an adjacent land owner who would be especially damaged by violation

of the Resolution.

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34. Plaintiff is relieyed from any obli.gation to pursne administrative renieclies tlzr4ugh

defendant Copley Township because Secction 902-1 of die Resolution, in accordance wittt

Section 519.24 of the Revised Code, pravidos:

In case any building is or is proposed to be locatcd, erected, constructed, *^" * or used in violation of any grovision of this Zoning Resolution or supplements thereto, *** ariy adjacent or neighboring property owners wha would be especially daniaged by such violations, in addition to other remedies provided by law, may institute injunction, mandamtis, abatemeot, or any othcr appropriate action or proceeding to prevent, enjoin, altate or remove su.ch unlavrfal l.ocafion, erection, coiastructiols, reconstructYou, er►Eargement, change, rr►aintenance or use.

35. Section 422-1 of the Resolution states the puipose of a C-3 Commercial 17istrict:

This District is established to malce provision for,a principal sliopping area of conin;unity and/or regional 'unpoitance to the ►nulti-purpose shopper, where concentrations of comparison shop^ing inay be found in quantity. (E►uplissis added.) 36. The Sample C-3 District Developed Reta.il--which is withiii the sanie C-3

Conzmercial Dis[Tict as, arid adjacent to, the Site,-houses seven retailers on 13.06 arxes, for an

average of 1.87 acres per retailer.

37. The propased developttrent of tlie Site houses two retailers in 39.25 acres, for an

average of 19,63 =es per retailer.

38. The comparison shopping within this proposed dovelopnlent of the Site would be

190% less concentrated tJaan the Sainple C-3 l]istriet.

39. The proposed developmuit of the 5ite, zoned C-3 Conrniercial, is in direct

cofttravention to the stated purpose of a G3 Commercial District.

40. The proposed development of tlae Site, zoiied C-3 Con-,mercial, is in direct

contrave►2tion to the present application of Section 422-1 of the Resolution to the existicig

7 C^ pY.

developxnent of C-3 Commercial Districts, as rwidenced by the Sainple C-3 Distiict ajid,

parti cularly, the Sarnpte O-3 District Developed Retail.

- _C1OIJNT TWO_ XN,lrCJNCTIVE AND DECLARATQRY RLI,IEF TO ENJOIN VIOLATION OF SBCT7ON 422-1 OF THE RBSOLUTION G[7VERNING C-3 COMMBRCIAL DISTRTCTS AND TO Dl3C)`.ARlr THM PROPOSED Dtv'VEL,OP1v11

41. Plaiittiff restates all the statements and allegatioias contained in the prewious count

as if fidly rewritten her6 t.

42. Plaintiff brings this claim p ursuant to Civil Rule 57, Civil Rule 65, and Chapter

2721 of the Revised Code for the puxpose of deterrnsning questioits of actual controversy

between the parties as hercinafter more fully appears and seelcing injunctive relief.

43. Section 423-1 of the Resolution states the purpose of: a C-4 Coi-yunercial District:

This District is established to include activities, tbat because of their nature, encourages traffic coitge,stion, parlcing pinhlems, storage problems or certa"vi atller activities that could endanger the health, safety, welfare of resxdents and arc, there#ore, best distiwuished from othar corrmiercial activ. (Enipiiasis added.)

44. The avera.ge building size in the Compaaison C-4 Dishict is 52,544 square feet.

45. The largest building presently in the Comparison C-4 District is 167,750 square

feet, and houses botli Levin Furniture and IC Penny.

46. The next largest builcling piresently in the Comparison G4 District is 112,160

square feet and hoti.ses Home Depot.

47. If proposed for the Comparison C-4 District, ttte proposed 147,806 scluare feet

mzd 136,357 se}uare feet buiEdings would be tlte seeozxd and third largest btEilditags.

8 copv

48. If proposed for tlre Comparison C-4 DiStrict, tho proposed 147,806 sqtiarc feet

aitd 136,367 square feet retai Eers would be the twn largest retail spaces.

49. The average building size in the Sarnplo C-3District is 14,664 square feet.

50. The largest square footage of any retail structure in any C-3 Commercial District

anywliere in Copley Township is 45,000 square feet.

51. The average building size in the paoposed development of the Site is M2,087

square feet: 9.7 times larger than tha mvcrage futiilding in the Satnple C-3 District said 3.2 times

larger than atty retait strtictuile in any C-3 Canunercial District anywhere in Copley Township.

52. Due to its size, tlae proposed cleweiflpmeait of the Site is best distinguished fron7

I other c4ni;nercial activity; it must be situated in a C-4 Comniercial District; it camiot be situated

in a C-3 ConvnercialDistrict.

53. Section 423-1 of the Resolltti.oir states the purpose of a U4 Commercial District:

This District is establislied to include activities, that beaausc of their nature, encoura es traffic con estion, parlcinig problems, storage problenis or cedain otlier activities that could endatzger #lie healtlr, safety, vvelfare of residents altd are, tl-terefore, bost distinguished fiarn otlies couunercial activity. (Eniphasis added.)

54. The Comparisolt C-4 Dislrict (wi.tb an average biiilding siz.e of 82,544 sqt..iare

feet) is iminediately serviced by four roads--two parallel reads (Rothrnck Road and

pendicular roads (Springside and Fliglit Mei-noria{ Spriaigside{Brookwall Drives) and two pe ►

II Drives).

55. The Sample C-3 District (wltti an average building size of 14,664 square feet) is

irnrnediately serviced by three xoads--olic parallel road (Rothrock Road) and two perpcfldicular

roads {Rothrnck Loop and Springside Drive).

9 COPY ry

56_ The proposed developnient of the Site (with an average building size of 142,087

square feet) wotdd be iinmediately serviced by oue road (Rotlrrock Road), a signiticaiit portion

af v+hich is only two lanes wide.

57. The average building size in the proposed developi-aent of the Site is 9.7 tin7es

larger than the average building iu tlte Sample C-3 District, but wottld be serviced by one roHd, a

significan.tportion of wltich is anly tavo lanes wide.

58. Due to the tra,ffio congestion such lnassive sttitctures would cause, the proposed

development of the Site is best distinguished from other conrinercial activity; it cannot be

situated in a C-3 Comnxercial Diatriet; if situated anywheie in Copley ">r'ownship, it rnust be

situated in a C-4 Commer6al District.

CO-UiV'f' THRER INJUN (,TI VE RELIEF TO EN.iO1N LOCATION Of- A GASOLIIviE SERVICE STArION ON THE SITE

59. Plaintiff restates all the statements and allegations contained in thc previous

counts as if fitlly rewritten herein.

GD. Plait3tiff brings this claim pursuant to Secdoti 519.24 of the Revised Code and

Sectiotx 902-1 of tbe Resolu.tion for the purpose of preventing tl2e proposed unla-tvfii1 location,

erection, construction, or use o7t the Site and seeks injwtctive relief puisuaiit to Civil Rule 65.

61. Section 202 of the Resolulion, entitled "Defnitions," defines a"gasoliiie service

I station" as follows:

Stnrctures and premises wliere gasoline, oil, grease, batteries, tire and motor vclticle accessories may be supplied and dispensed at retail * * *.

62. Tlte proposed developniesit of tlae Site includes a fuel station.

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63. Section 422-3 of the Resolution addresses conditionally permissible uses in a C-3

Comiuercial I3istEict, and pl-ovides:

The Board of 2rat3ing Appeals may issue Conditional Zoniug Certificates for uses listed lierein subject to A.rticle VIII, Sectioii 801, 801-2, -3, -4, the genezal requireinents of Section 802w 1, aiid the specific requirerraents of Subsections 802-2 as referreri to below: **^ U. Gasoline Service Station, subject to S-ubscetian 802-2-105, -107,-123.

64. Subsection 802-2-107 sta#es:

Such developments shall be located on major thorougllfares or at intersections of major andior collector thoMughfAres.

65. Section 202 of the Resolution daes not define "tnajor tlioroughfaro," or "collector

tlroroughfare;," liowaver, it dcfines "thoroughfare" as "[a] street or alley."

Gb. Section 202 of tlie'Resolution dofine.s "street, arterial," "street, collector," and

I "stnc-^, local coilector.,"

67. Section 202 of the Resoltttiot3 defines "street, arterial" as foUows:

This olass of street brings traffic to atid from expressways and other ArEerials, and serves those 1uajox rnovements of trai`t:

68. Section 202 of the Rcsolution defines "street, collector" as follows:

This class of street servos the internal traffic movenicnt wittiin an area of tlxe Township, such as a subdivision, and connect tUis ai^a with an Arterial system. Collectors do not ltandle long thmugh trips and are not, of necessity, coutiuno-us for any gi^eat ]eiigth_ This principal difference between Collector and .ELrtcrial streets is the length of the trip they accoxximodate.

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69. Sectinn 202 of the Resolution defines a"street, local collector" as follows:

TWs class of street serves the internal traffic moven3ent within areas such as; major subdivision, iadustrial areas atid cominercial areas and cozinect with other collector streets.

70. "Major thoroughfare," as used in Subsection 802-2-107 of the Resolution should

be given the same meaning as "street, artetial," as defiuerl in Section 202 of the Resolution.

71. "Collector thoroughfare," as used in Subsection 802-2-107 of the Resolutioll

should be given the same meaning as "street, collector," as tlefinecl in Section 202 Qf the

ResoltLtion.

72. Rothroclc Road is a collector thoroughfare; it is not a rnajor thoroughfare.

'13. Fairway Parlc Drive is a street, local collector; it is not a collector thoroughfare.

74. Because the Site is not located otj a ma1ar thorougltfare or at the intersection of

major aiidlor collector tliorouglifares, a gasoline service station is not a conditionally pennissible

use forthe Site.

75. Subsectioi1802-2-123 states:

Such uses slYall be permitted under the following conditions:

A. Provided that such facilitios be located at the extrernity of the business districts so {ts not to interl"ere with the pedestrian intei-cliange, between stores in the district and provided fiirther, that it would not limit expansion of the pedestrian-oriented facilities.

76. Tlie Site is located in the middle of thc C-3 Commercial District; the Site is not at

the extremity of the lrusiness district.

77. Because 11le Site is riot at the extremity of the business district, a gasolina service

station is not a conditionally perrnissible use for tlxe Site.

1.2 COPY ,

WMMOitE, Plaintiff demands that this Court;

l. Pursuant to Revised Code Chapter 2721, Revised Code Section 519.24, Sectioii

902-1 of The Zonizag Resolution of CopleyTow"p, Summit County, Ohio, and

Civil Rule 57, determiue the meaning and construction of Scctions 422-1, 423-1,

and 422-3 and Subsections 802-2-107 and 802-2-123 of 'I`he Zoning Resolution of

Copley Township, Sulrunit Cottnty, Oluo aricl declare the rights of the parties aiid

staftis of the real property lo-cated on the west side of Rotln•ocif Road, in the

Tovunship of Copley, County of Summit, State of Ohio, aaid ktiown as parcels

1502633, 1500656, 1506468, 1505146, 1505147, 1500458, 1503386, 1501917,

and 1501918.

II. Declar'e that the developm.ent set fflrtlt in the Site Pla3 must be situated in a C-4

Colnm.ercial District, and cannQt be situated in a G3 Cflmmcrciai District, under

Sections 422-1 and 423-1 of The Zoning Resolution of Copley Towtiship, Suiumit

County, ahio;

lI.[. Require that each clefenckant set forth its interest wbich would be affected by this

declaration of rigfits set forth above in I and II ar ve forever barred;

1.V. Enjoin Deftndants, LRC Developrnent Compan.y, LLC, LRC Copley Livestors,

LLC, LRC=M Ratluock Investors, Ltcl., and Marhofer Development Co., LLC,

fToiu proceeding with their proposed development on tlte Site;

V. Enjoin D+sfendant.s, LRC Developnient Coinpa11y, LLC, LkC Copley 1nvestars,

l`.LC, LRC-.ivl Roftock In.vestars, Ltd., and N1ar13ofer Development Co., LLC,

frorn erecting a gasollne ser+rice station on the Site; al7d.

13 Co PY ^.,

Vl:. Grant Plaintiff sucb otlYex relief in law asaci equity as this Court deems just and

pzopex.

Respectfully sub initted,

RUPORT C(3.. L.P.A.

B'4'':

-'Ada.m Eberts (#0081065) Attoaneys for Faiiway Park Properties-, LLC 3700 Euibassy Parlcway, Suite 200 Akroii, Ohio 44333 Phona: (330) 666-5555 Facsirni.lo: (330) 666-7272 law@rupoi#1aw.cain

.TURY DEMAND

Pursuant to Civil Rule 38, Plaintiff ):iereby d ai^ds a in the above-entitled action of a11 issues so triable.

W Exhibit 18 IN THF, COURT OF COMMON PLEAS S fJmM LT COUNTY, (?HIO

A1RWAY PARIC. PROPE RTIES, LLC, ) CASE NO 2012 49 5472 826 Fairway Park Drive ) oplcy, Ohio 44321 ) JCJI3CR AMY CORRICALL .10NES Plaintiff, ) ) Vs. } VIRST AMENDED VERll{'IEU ) CONIPLA1N'C FOR 1NdUNCTxYE } RT;LiI`+.F AND DECLARATORY JUDGMENT Ol'LEY TONYiVSH1P, OHIO, ) 540 S. Cleveland-T44ass+ilon Road ) JURY DEMAND ENDORSED ople3t, Ohio 44321 ) HkLRF-ON ) and ) ) } p vy )ALE PANOVICH, TRUSTEE, OPLEY'1`OVVNSIBIP,OH10 fai Hei- Oi'ficial Capacity Only) 540 S. Clevcland-Mas:silloxi Road ) C-1 oplcy, Ohio 44321 ) C-

And ) cn

} q ELCI+1 H[1M)v'HRYS, TRUSTEE, } COPLEY TOWNSHIP, OH10 ^ 'In Her flfficiaf Capacitx 0n1Y) ) l540 S. Clevel€m[l-Mnssilfaty Rof:d ) Col)lcy, Obio 44321 } ) and } ) ^ SCO'['T DRESSLER, TRUSTEE, } COPI_EY'L:OWNSHfP, OHIO ) (hi His Official C:aPacity Only) ) ^540 S. Cleveiand-N'Iassillon Road ) opley, Ohio 44321 } ) atid ) 1- i

SUE SCHULTl1, ZONING INSPECTOR, COPLEY TpWN5HiP, UHXQ (Krt kier Oi'Ccia.l Capacity Oniy) 1540 S. Gleveland-Massilion Road CoPlcp, Ohio 44321

and

MATT SPitIlNGER, ASSI STANT ZONING INSPEC'PqR, COPLEY TOWNSHIP, OHIO (In His Official Capacity Onl9) ^:: 1544 S. Cleveland-Massillon Road Copley, Ohio 443211

anc3

WAL-MART F.T+sAL ESTATE BUSr1V1,SS TRUST 2001 S.K. 10" Street $entunvllie, AR 72716

Befendauzts.

Plaintiff, Fairway Park Propcrties, LLC C`Fairivay Park"), for its clainss for relief'allqes:

4URISDICT[ElN

1. This is an action for declaratory judginent, pt7rsuaiit tc) Chapter 2721, Ohio

Revised Code, and Sections 2721.02, 2721.03. and 2721.13 thereunder, and under lttiile 57 of tho,

Oliio Rules of Civil Procedure to declare unconstitutional aiad uiilawfttl certain recent amendnielits to the Zoning Resolutiou of Copley Townshila, inciLtdiL3g; Article 4.01 C-Gli

General Retail Commerciai District, otFective on March. 16, 2012 and all subsections thereof.

2 ^ . b*

TTIE PhRTYE5LAND THE SiTG

2. Plaintiff is the owner of real property located on the east side of Rothrock Roacl,

in the Township of Copiey, Coiinty of Surnrnit, State of Ohio, comirrorily lmown as 3826

Park Drive, also known as parcel 1500073 ("Fairway Park Property")

3. Plaintiff is focflted directly across the road fiom property located in the Township

Copley, County of Surnmit, State of Qhio, knowi3 as parcels 1505147, 1505146, 1500458,

1503386, 1501918, 1501917, 1500656, 1502633, and 1506468 (tlic

4. Defentlant, Coplcy Township, is a duly organized and existiiig political

and stibject to its vision within Sumtnit County and the Site is Within Copley Townsliip

Resolution. Defendants Heletl Hutrtphrys, Dale Panovich, and Scott Dressler are Copley

Township Trustees, alld defendants Sue Schultz and Matt Springer are Copley Totivnship Zoning

in.%pectors (callec:tively referred to as "Copley Township").

5. Plaintiff is an adjacent or neighboring property owner and €IefendarEt, Wal-i►rlart

IReal l;:state 13usiness Trust, is the reccnt owner oF the Site by eotxveyances occurring on May 30,

12012 and September 20, 2012.

GY}NTRU'VE R.SY

6. :By letter dated Jutic 2, 201o, LRC Devcloprnent, LLC subtrtittcd what it refers to

a"'Lorting Certificatc Application" to Copley Township for the Site, a copy of which is

attached heteto as Exhibit A. Oi1 or about J'une 16, 2010, a prelintinary Site plan was submitted

to Copley Township to construct a Wa]-Mart Siiperaenter and Sam's Club with an accompanying

fiiel service facility ("Wal-Mart Project"}.

7. The Final Site Plan Docutntmts wm submitted to Coplcy Towttsliip on

September 10, 2012, a copy of thc Notice of Subrnission is attnbed liercto as Exhibit B.

3 kz i1

8. At the titne of the Appli.catioti, tlie Site was located within a C-3 Conimercial

as described in the Zoning RestiIutimxt in effeGt at chc time (the "Original Zoning

`ion").

9. Section 422-i of the Original Zoning Resolution states the purpose of a C-3

'Coinmercial District:

This District is establislxed to make provision for a principal shappuig area of community andlor regionai iinportancc to the znulti-purpose shopper, where wncentrgtions of comparison _.,sh ot]Uill^ niay be foUnd in quaniity. (Emphasis added).

10. Section 4234 of the Qriginal Zonitig Resolution states the purpose of a C-4

Corntnercial District:

Tliis District is established to incfude activities, that beca.use of their nature, encoura es traffic con estion parkixig problcrns, storage problems or certain other activit:ies that could endanger ihe health, safety, welfare of residents and are, therefore, best distin tsI ed from other comrnercial aativit .(Emphasis added).

l 1. On Navember 4, 2010, Plaintiff filed a Complaint in Sunzmit County Comrnan

Pleas Court for injunctive and daclaratory relief bearing case uumbcr 2010-11-7463 ("Tairway

Litit;ation"). In that Coir€plaiiit, Plaintiff specifically requested the Court to declare il-ie

dewelopnient set forth in the Site Plan nit►st be situated in a C-4 Commercial District and cannot

be siluated in a C-3 Camrnrxcial District, tnider Sections 422-1 and 423-1 of the Zoning

I,tZesolution of Copley Townshils, Sumrnit County, Ohio. On May 16, 2011, Judge Storniei-

denieci the defendants' motions to dismiss, finding that PlaintiJFs claims were properly before

the Cou rt pursuant to statute atad the Zoning Rcsolution.

12. Dn January 4, 2012, Copley Township emtered into a Development Agreer13ent

with LRC Dcvelopment Conlpany, LLC and bValniart Real Estate Sktsiiness Tnw, a copy of

whicll is attached heretb as Exhibit C.

4 3

13. During the pendency of tiiie Faiiway Litigation, Copley Townsllip aniended the

inal ZoLLing Resolution (the "Aulended Zoarijig Resolutioii '}. Upon iiiCoriiiation and belief,

as reported by Bruco Griffin in an ohio.com article dated p'sbrttaiy 5, 2011, Ttrtstee Dale

wich stated tliat any changes to Copley zoning woulcl not affect Wahnart's proposal, as iew of the project has already started. A copy of the article is attached liereto as Exhibit D.

in an erziail dated April 4, 2012, Zoning lrtspectflu' 11![att Spi-inger stated, "5inae the

application was sribEnittecS prior to the Eiew regulations anc# districts goii3g into effect, they

rcquired to cornply under the old regulations. The property in qtiestion was Coknmencial-3

is now considered Comrcercial General Retail (C-GR). A copy of the eniail is attached

o as Exhibit E.

14. ht arnending tles 7oning ltesoltltioll, Copley Towliship uniilwft4ily rezoned the

solely l'ur the purpose of pet-mitting the Wal-Mart 1'roject_ As of March 1G, 2017, the

tive date for Anae«ded Zoniiig ltesolution Article 4, the Site now t'ails within the C-GR

sral Retail Er`ommercial Distric:t.

15. The relevant sectioijs of Arneiided Article 4.01, C-GR General Retail Cotr,niercial istrict are as foitows; .

A. Purpose g the C-3 and C-4 Districts in thc This DistriGt, tontprisil► previous 7otting Resolution uatii such time as the township zoning map is amCnded to designate the iocation of the C-GR District, is established to provide for a wide range oF retail and service uses, iuclrrdurg fxiglr itrtenslry retail arid serviee rrsas, sireh as large-sca!'e retail estahlfslerrrertts, that rneet the shopping tteeds of the curnmutiity and tlre region. This District is an appropriate location for developments featuring tnultiple rstail and service uses on large sites with parkiiig atid drives for multiple tenants and coordinated signaae and la«clscaiaing. (Bold enlphasis in or:gintil, bold and italiciied en-ipltasis added).

B. Permitted Uses

5 ii

I. Retail goods and personal servioes establislunents that provide goods, products, inerchandise andfor services directiy to the consumer, inctud3ng high intensity retail ansl service uses, such as large-scale retaiil-establisliments,4hat meet the shopping needs of the oorrnrt►unity mnc# the region. (emphasis addc4

3 . Accessory uses normally and regularly associated with the principal uses listed above. (emphasis added). 16. The AYnended Zoning Resolution conrbines the fornier C-3 and C-4 Districts into

one C-GR District Resolution, eliminating the important distinctions between the C-3 azrd C-4

Districts that existed in the Qciginal Zoning Resolution inctuding concerns regarding trat'fic

congestion, s6orage problems, and parlsing problesns; removing key languat,e stating that C-4

districts are for activities that would endanger the "health, sakty, welfare of residents" if

perrnitted in athcr districts; and expressly permitting "high intensity retail and servscc uses, suclr

as large-scale retail establishments." The differcnces in the districts vvere not just theoretical. C-

3 asid C-4 Districts have actually beerl developed differently and separately for over the last

twenty years based upon the careful and planned application of the Zoning Resolution to

development in Copley Township which clearly demonstrates Copley Townsbip's planned

pactern and practicc.

17. In addition, the Original Zoning Resolution permitted A"Gasoline Service

Station" solely as a conditionally permissible use in Section 422-3, regulating C-3 Commercial

Districts. Nnwhere in the Qrigina! Zoning Resolution is a gasojine service station and/or fuel

describexl as an accessory usc.

18. In cornparison, Section 103 of the Amended Zoning Resolution expressly states

afuel station may be an accessory usc to a large-scaie retail establislnne,7t:

FU'Pi-, STATION (as an acccssory use): A facility otTering only retail sale of gasoiine that is located on the same lot as a large-

6 3

scale retail cstablishu'ient sa that access to atid egress frorn the fuel station facility shall be pennitted only by mews of main drives and aisles cQnstrueted for the large-scale retail establ'sshment.

19. That Defenciant 11+larhofet Developrncttt Co., LLC was substituted as a defendant Trust that on July 19, 2012 due to a transfer of parcel 150G46S.ta Wal-Mart Real Estate Business ^• occurxed on May 30, 2012. Furtlier, on September 24, 2012, Plaintiff was notified of the

Rotlu'oc.k Investors, Ltd. in a substitution of defeixlants LRC Copiey hivestots, LLC and LRC-M in ceAain paicels of real property to in the Pairuvay Litigation due to a transfer of tnterest

Wal-Mart Reol Estate Business Trust that occurted on September 20, 2012. Director for Copley 20. 13y a SeptemGer 25, 20121etter to Matt Spiinger, Planning

Township,LRC Development Cornp€ury, LLC withcirew the Application for a zoning cer-tc6cate

for the Site at issue iii the I'ak-way Liiigation, a copy of which is at#aohed hereto as l3xhibit P. 21. In the Fairway Litigation, LRC Developimnt Cornlmy, T-LC admitted mid

surnnnary judgment that `qUe asserted in a subsection heading in support of their motion fiir Proposed Use Townslaig amended its C-3 Cflmmercial 0istrict Eo accommodate LRC's

expressly." (emphasis added). LRC 17er+elopment Company, LLC Motion for Summary

jJudgznent in Case No. 2011-10-7463 at 2. 22. Upon infonuation and belief, in amending the Zoning Resolution, Copley

Township failcd to adcc{uately consicier the rerluarecnents of Copley Township's CotnPrehensive

Land U&e Plan ("CLUP") by faiXing to consider a 3nuynber of material considerations iuoluding

I but not iimited to whether there is adequate infrlstructure to support the newly permitted uses as impact required by section 2.3(A) on page 33 of the CLUP; failing tn cot^sider the extent of the by the CLUP; failing to on the sonounding community of the newly permitted uses as required

consider tlie goals listed in the Land X1se 1'4licy Matrix relating to the Montrose Retail Axea as

7 'y .

listed in section I of pages 178-79; aud failing to cxansicier whether the newly permitted uses

adequately protect Copley Township's natural resources as set forth on pages 354 of the

CLUP, such as the requirement for no net loss of rvetlands.

COUNT QNE (DCCLARA'I`ORY RELIEF)

23. Plaintift`incorporates by reference paritgraplvs 1-22 as if they were fully rewritten

herein.

24. Copley Towmship's amendments to its Zoning Resolution as set forth above and

its rezoning of the Site were arbitrary, capricious, unreasonable and without substantial relation

to the public health, safety, and generat welfare of the community and, tbereforc:,

unconstituti4nal because they were done for the express purpuse of accommodating the Wal-

Mart Project for the benetit of LRC Development Company, LLC and 4dVal-Mart Iteal 14state

Business Trust rather than for the required pnrpasc of advancing tlu; public Irealth, safcty,

morals, aad gcneral welfare of the coirnnanity and because they have no substantial relationship

to and do not advance #he public heafth, safety, morals, and general welfare of the cormnunity.

25. Copley Township's amendmcnts to its Zaning Resolution as set forth above and

its rezoning of the Site were arhitnary, capricious, and unreasonable as applied to said property,

having no substantial relation to, r►or sWbstantial aduancement of, the public hcalth, safety, and

general wetFare of Copley Township, and that the effect of such action upon Plaintiff's property

vinlatcs the due process and equaJ protection clauses of the h'ourteen€h Amendment of the United

States Con$titution and Article I, Section 16 of the Ohio Constitution.

26. Copley Township's amcndments to its Zoning Resfllution as set forth above And

its rezoning of the Site violate Ohio Revised Code §S 19.02 bccause such acta vveFe not

perfornY.ed in the i€rterest of public health, safety, convenience, comfort, prosperity, or general

8 4velfare and in accordance with a comprehensive plan.

27. Copley Tow^lAp's rezoning of the Site has diminished the use, enjoyinent and

of 1'laintiff's property in violatinu of the due process and equal proteotion clauses of the

P,rnendment of the United States Constitution and Attiole l, Section 16 of the Ohio

and the valne of the Piainfifi's propeLly wiil remaili diniinisheti until Copley

restores the original zoning to the Site.

28. Plaintiff is entitled to a declaration that Copley Township's amendx-nents to ibq

Resolution as set forth above and its re'^oning of the Site are nnconstitutioatal because

were capiiicious, arbitrary, and ui1reasonable with no substantial relation to ptibfic health,

y, morals, and general welfare and are in violation of Ohio Revised Code §519.02 for the

reasons and bccause they are not in accordance vrith a comprehensive plan. -

COUNT TWO (IPlJUNC'I'I_VE RRLIEF PRRLVE 1VTING '1`RE ISSUANCE OF ANY ZONING t'i'IFiCATF FOR THE Si

29. Plttintiff incojporates by rcference paragraphs l-28 as if they were fully revaritten

30. Plainti#1?s counsel has been infoiTned that defendant, Wal-Mart Real Estate

`l'rust, will fiie an Application for a zoning certi&,ate for tlle Site wi-thin the very near

and re

31. Upon inforrnation and belief, the zsrning certificate will be issued by Copley

prior to the Court's deteuninatic^n of the constitutionality and legality of Copley

amendmera to its Zoning Resolution as set forth herein and its rezoning of the Site.

32. I'latintiff will be iuYr-parably harrned if CQpley Township is perrnitted to issue a

9 _ •.

certificate for the Site based on its amendments to the Znning Resolution prior tio a

nation ofwhether said amendments and rezoning are constitutionaf and/or legal..

VVIt1EREFQItF, the Plaintiff dernxncls judgnlettt against the defendants that this

art grant the refief as set forth below:

l. Dectare Copley Township's rectining of the Site to be unconstitutional andfor

othenvise illegal and void;

H. PrelirninariIy enjoin Copley'I'ownship and its 7oning Inspectors, Sue Schultz and

Malt Springer, from issuing any zoning certificate related to the Site until such lirne as

the Court has ruled on the constitutionality and legality of Copley Towrrship's

ainendments to the Zoning Resolution ancl its rezoning of the Site;

IIl. Penuanently enjoin Copley Township aad its Zoning lnspectors, Sue Schultz and

ivlatt Springer, from issuing any zoniiyg certificate related to the Site which would allow

the Wal-Mart Project;

IV. Itequire that each defenclant sot forth their intcrest which would be affected by

tliis declaratian of rights or forever be imTed;

V. F'or PWntff°s costs and reasonable attorncy's fees, along with such other

equitable and supplemental relief as this Cowl deems just and proper under the

circumstances.

10 Respectf«tty submitbcd,

RLJPQRT CO. L.P^A. ^ - .^.

13Y: ScotE H. i2.u At^tho orneys i perties, LLC 3700 ^mbassyi arsway,c200 Akron, Ohio 44333

' I Phone: (330) 666-5555 FaGsimile: (330) 666-7272 law portlaw-com

JURY DT'1MANIi

Ptusuant to Civil Rule 38, 1'lain#iff bereb ernai d by jury in the above-entitled action of all issues so triablc,

Scott H. Ru

T1SH1t Public [tecords EtequestlPLEADII`iCiS12012 Co_ tional Comp[aEnt1121404 Const C aatplaint v2 amemded.doc

11 Exhibit 19 -. , ..;ANE. M. HJRRIM

• i 7013APR -8 PM 1`26 IN TRE COURT OF COMMON ^LKAS , ^4K MIOFT GOtJCOINI ^S sul^^t^r uavrrrx, o^ut0 FAiRWAY PAXK PR[IPDRTIES, LLC ) Caaa No. 2012-09.-5472 ) plain[iff TU I)L*HAEJS0N 1v1iCCWI"Y ^ vs. ) S 1`KPUILAMN Aiwff) Cf WN aF Y4YLUAtTAItiC 1.ORNSSA& Wi GOpLI?Y TOWNSHIP, f]isilQ, ei aL ) PRE.iiTDT^^ ) Uei'andg^tts. )

'thcati.orfsays of imard for iiio r$slaective parUes in the above entitled iualion Ite►eby Wpulato thai die above eiii.##ed aotion inr,locling the camplaiaf, aniendal complaint And

caxu^Wrol4a ram clismisscd smth piejudior, Each pVy agxecs to be'a ils Owu atbornoY's fees and

wcVm=s. Ue parlies qp,eo that tho comt costs shW1 Sa Iaid by tlae ptaintif>::

IT xS 80 aRDRRUID,

SUI3GEMCCAR ^.. 11--^

c;oli 14. ^732Qj I►ving ID . Ste -^ ^ Rup^^ Co., I.,P,A, TD. 3700 fttibassy parkway ii Sau#h vorge St t ,5uibe 200 Afctwi„ Ohio 443q4 Akrcxa, Qluo 44333

Attornajrj'or Plrri n#fJ`'lerrfnvarv Par lc Aftvrney fox' Defirulrrnt Capluy Tnwnshrp, Properaes, uC Clhio, e( al. I

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Sheldnn $+em (0000140) J'atdm'► 13eros (0047404) Tinintby 1, Duff (0046764) Gery'r.Wemoz (0070591} Beuta, fk^nor & Greet^^^„ee, LF^ .. 3733 Purk East riL;vcs, Suita 240 Beaclswaatl, (7Wo 44122

Allvrrteys, far Defenrlunt- ` Coumercfrtfma^ ^^l-mnFIBered rwate Business 7^ust Exhibit 20 IN THE COURT OV COMMON PLEAS COUNTY OF SUMMIT

COPLEY TOWNSITYP, } CASE NO. CV-2011-07-4035

P1.aintiff; } EXCERPT OF 'I'RANSCRIP'I' Vs . } OF PROCEEDINGS } CITY OF FAIRLAWN, OHIO, ) TESTIMONY OF et a7. . , } DANIEL ZARKOVACKI } Defendants..

STATE OF QHIO, EX REL.,) CASE NO. CV-2012-02 _•1060 JACOH POLLOCK, }

Relator/Plaintiff, }

vs. } } CITY OF FAIRLAWN, OHYO,} et al.y }

pefendants: }

SE IT REMEMBERED that upon the hearing of the

above-entitled matter in the Court of Common Pleas,

Summit County, Ohio, before the HONORABLE ALISON

MCCARTY, Judge Presida.ng, carnmenciri.g June 1, 2012,

the following proceedfngs were had, being an

Excerpt of Transcript of Pxoceedings:

KELLEY E. SPEARS, RpR Offioial Cou3:'t Reporter Surnmit County Court of Common Pleas 209 S. High'Street - Third Floor Annex Akron, OH 44308

Op)?-i CIAL, COURT REPORTER - C. A. T, ^. time out inthe hallway, my name's Jordan

2 Berns.

3 A. Yes, sir;

4 ^• And I represent the relator in the

5 lawsuits before the Court today.

6 Mr, . Zarkovacki, you are the owner

7 of Fairway Park Property LLC; is that

8 right?

9 A. I'm one of the managing I'm the

10 managing partner. That'a an LLC. That

11 has several partners that own zt..

12 Q. And-Faixway Park Properties, LLC owna the

13 Fairway Park apartments

14 A. That's correct.

15 Q- -- located in Copley Township?

16 A. Yes, sir.

17 Q Q. I'm going to come by, and you'll see that

18 there is a map in front of you. I just

19 want to point out the location of the

20 Fairway Park apartments. They're these

21 apartments here on the map; is that right?

22 A. Yes, sir.

23 ^. They have a. drive entrance of f of Rothrock

24 Road?

25 A. Yes, sir,

KELLRY E_ SPEARS, RPR -- OFFICIAL COURT RSP4RTFR - C.A.T. 6

1 A. Yes, a little bit.

2 Q Q. There's a dip down the driveway and the

3 apartment buildings sit lower than the

4 road, lower than the property across the

5 street

6 A. That's generally right>

7 Q. -- where the proposed Walmaxt and Sarn' s

S Club is to be located?

9 A. Yes, sir.

10 Q. Now, the Court has limited the relator

11 here to a handful of questions about a

12 lawsuit that you initiated on behalf of

13 Fairway Park Properties, so I want to ask

14 yau about that.

15 rf you could, would you turn to

16 P].aintiff's Exhibit 26? Should be right

17 in front of you in the book here. Let me

18 help you with that. I meant 66, I.

19 apologize.

20 That is a copy of the complaint in

21 a Yawsuit captioned Fairway Park

22 Pxoperties r LLC versus LRC Development

23 Company, LLC; LRC Copley Investors,

24 Limited; LRC-M Rothrock Investors,

25 Limited; Rlarkioffer Development Co., LLC;

KELLE3t 2. SPRARS, RPR -- OYFiCIAL COURT REPORTER - C.A,T, 7

1 and Copley Township, Ohio, correct?

2 A. That's oorrect.

3 Q. And you've seen this complaint before?

4 I have.

5 Q• You authorized the filing of this

6 complaint on behalf of Vairway Park

7 Properties, LLC?

8 A. Ye^^ Sir<

9 O. And you underetand that this lawsuit

10 challenges the zoning of the property

11 where the proposed Walmart and Sam°s Club

12 is to be located?

13 A. Yes, sir.

14 Q. And claims that the property is not zoned

15 to allow for the Walmart and Sarn 's Club as

16 proQosed?

17 A. Yes, sir--

W5 4- And that, therefore, the developmenf of

19 that property should not proceed for a

20 Walmart and sam's Club as proposed?

21 A. Yes, six.

22 Q. And Scott Ruport, who's sitting here in

23 court today, represents Fairway Park

24 Properties in that.lawsuit?

25 A Yes, sir^

K-ELL}'sY E. SPEARS, RPT2 -- 4gk'ICIAL COURT REPORT)ER ,. C. A. T.. 8

:€; who's paying Mr, Ruport's fees in that

2 lawsuit?

3 A. To my knowledge, Mr. Stark and Mr. Newman.

4 Q. And did they agree with you to pay those

5 fees?

6 A. . Ye s .

7 Q. How did that cQme to be?

8 A. Yt came about over a series of telephone

9 canversations in early 2008 to the best of

10 my recollection.

11 Q. Conversations between whom?

12 A. Mr. Newman az;d mys elf.

13 Q- And did Mr. Newman ask you to iaitiate a

14 lawsuit challenging the zoning?

15 A. No.

But he volunteered in your conversations 16 Q.

17 for he and Mr. Stark to pay the legal fees

i8 in conjunction with that lawsuit?

19 A. As I recall, at some point during the

20 disau.ssi oxxs Mr. Newrnan asked if we were

21 going to proceed with a lawsuit. We

22 indicated that we were considering it, and

23 he offered to pay or help to pay some of

24 the costs. He didn't initially offer to

25 pay all of the eost5.

KELLEY E . SPEARS, RPR -- OFFICIAL COURT REPORTER - C. A. T.. 9

1 Q. Okay. But he has paid all of the costs?

2 A. Yes.

3 Q- At some point did he offer to pay all of

4 the costs or did he simply do that?

5 A. I th2nk at some point I asked if he would

6 be willing to pay those coSts and he

7 agreed.

8 0. And did he recommend that you uzse Mr<.

9 Ruport to represent you in that lawsuit?

10 A. No.

11 Q- ATe you aware, or were you aware when that

12 lawsuit was initiated Mr. Ruport also

13 represented Mr. Stark and Mr. Newman in

14 opposing the proposed development of the

15 Walmart ancl Sam's Club on Rothrock Road in

16 Copley Township?

17 A.. Initially I knew that Mr. Ruport and Mr:.

18 Newman had conv'ersa'ta.ons. I didn' tknow

19 what the representatzon arrangement was.

20 Q- So sitting here today, are you aware that

21 Mr. Ruport also represents Mr. Stark and

22 Newman in opposing the relocation of

23 Walmart and Sam's Club to Copley Township?

24 A. 5t e. s .

25 Q. Did you learn that through Mr. Newman or

KELLEY E. SPEARS, RPR - OFFICIAL COURT REPORTER -- C.13, . T. 21

1 say it'8 time for this Co be curtailed in

2 some manner so we don't create an undue

3 chilling effect on citizens who have the

4 right to expxess their opinions and oppose

5 things if they believe strongly that they

6 are against their interests.

7 MR. J. BERNS: Your Honor,

8 respectfully, this is a disingenuous

9 argument. We're not complaining about

10 citizens taking action, but it should be

11 abundantly clear to the Court that the

12 evidence shows that at the hub of all of the

13 action that's being taken that we've

14 identified in this, are Mr. Stark and

15 Newman, that they are the people who have

16 arranged and organized and funded these

17 challenges, and there is plenty of evidence

18 before the Court tying Fairlawn directly to

19 Mr. Stark and Mr. Newman and their actions>

20 THE COURT: With all due

21 respect, T've heard enough, and based on the

22 testimony that I've heard thus far, I am

23 going to strike this testimony as being

24 irrelevant. If by the time.thia case is

25 over there has been some greater nexus of

KELLEY E. SPEARS, RPR - OFFxCYAL COURT REPORTER - C.A.T. 22

^3 relevancy to present to the Court, I maY 1

2 consider ohanging my decision on that, but at this point I am, with all due reapect, no 3

4 offense, Mr. Zarkovacki - THE WlTNESS : I understand, Your 5

6 Honor, THE COURT: We don't normally 7 have these arguments in front of the 8 witness. I am going to strike the testimony 9

^a and go back to the defense case. MR. RUPORT: Thank you, Your ^.1

12 Honor.

14 ***** End of excerpt *****

19 20

21-

KELLEY E. SPEARS, RPR . OFF1CIAI, CC}UR°P REPOR'I'IgR - C.A.T. ^ , C E R T I ^: ^. ;,..i^. ^ Ms;

f, KELLEY E. SPEARS, RPR, Official

Shorthand Repozter, Court of Common Pleas,

Summit County, Ohio, do hereby certify that I

reported in stenotYPY the proceedings had in

the foregoing-entitl.ed matter, and I do

further certify that the foregoing EXCERPT OF

TRANSCRIPT OF PROCEEDINGS, cansisting of 23

pages, is a corrtp].ete, true and accurate

recoxd of said EXCERPT OF TRANSCRIPT OF

PRC7CEEFTNGS.

1: further certify that I am not a

relative, counsel or attorn.ey of either party

or otherwise interested in the event of this

action.

YCELLEY E. SPEARS, RPR

offici.al Court Reporter

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VIA I^MA>X. ^atti.szuitU a.state.ol^.ns and dan ostsrfeld epa.state.oh.us RND FEUERAL EXI'RESS

Oh.io EPA - Division ofSurlace Water ATTN; Permits rrocessing Unit Lazarus Government Center 50 West Town Street, Suite 700 PO 13ox 1049 Colurnbl^s Ohio 4321 G-1049 Attn: Ms. Patti Sraith and NIr. Dan Osterfeld

Response to Ohio I1PA ID Number 103675 I'nblicNotice, dated October 11, 2010,

Coips t'ublic Notice No. 2008-35-TUS lssued Scptember 15,2010

Dear Ms. Smith and Mr. OsterFeld:

As you know, LRC Coplcy Investoxs, LLC (the "Applicant") proposes to caiistruct a cotnmercial retail developmenL comprised uf two buildings t,ntal3ng 147,906 square feet and 136,367 square feet, respectively, on a 40 acxe property located west of Aothrnck Road in Copicy Township, Summit County, Ohio (tlie "Projeet"). To accomplish tlus, Applicant proposes to discharge fill rnaterial into I,498linear feet of streazns and 1.58 acres ofwctiands.

As this is a psaject that requires an indivldaal U. S Army Coips of Engir,ecrs (l3SACE) wctland pennit, a separate Ol-iio Water Quality Certification is aIso needed for the Project. The roview is reqaired to foliow Ohio's anti-degradation rales as set forth in the Ohio Adrniniatrativo Code C'OAC") Section 3745-1-05 Ant;degradation.

As a partner in Rosea-nont Commons belaware, LLC, I objeot to tlfe Application and strougly urge that the Cll1io FJiviroml,entat prgtection Agency (the "4EPA") dany Ehe requested water cpalxty ocrtification for the reasans set forth herein.

1]ncler the federal laws, an.d following Seetion 404(b)(1) Guidelines, as this is a noit-water dcpendani acti-Aty, thc first ste)7 that an Applicant rrtust demanstrate is that no other altemativcs are available that would allow a reasonable development of this t3pe with no regulated stream or we#land impacts (the "OfF Site A.ltemafive A.ualysis"). If this cai be successfiilly demonstratcd to be the only practicable site available for tt3e Project, the next sequential step is to. determine if al1 cfforts have Iseen taken ta xninitnize ianavoidable impacts to wetlands and streams on the selected site. Tlnis swmd sequentiai wetland and stream impact lninimixation step is akin to the (]hio requireFnent nnder tlis ffiti-degradation rules that inantlate producing tt ►ree pxvjeet altcinatives for ieeiew by the OEPA: a preferred design alternativc, a non-degraclation alteinative and a minimal degi-adation alteraative.

^: y^ SU BP 00125 In response to tho USACH public notice for this projec:t, I have aircady Isrovidcd flte USAC$ doeumentation questioning tlie ad©quacy of the Applicant's ofF Site Altenvativc Analysis for the projcct, inc3ic& ti3tig E[iat cythea altematives do exist that do not require any impacts to wetlaivds or streains andlor inay have significantly fewer impacts on weilands and xtie$rns. This response to the USACE public no3 ice is pr'ovidc:d in full as Exhibit A. The adequacy of the infonnation submitted regarding the on-site wetland and streao impact nninlrnizatxdlr efforts by the Applicant is direGily related to the anti-dcgradation rcquircnxent of preparing a reasonable non-degradation altimaative and a minimal degradation alfernative for revierv of theO'hio EPA-

e Applicant, some background for the rn ardeir to fully assess the allernatives proposed by tI-► l?roject is xequired. The Applicant bas made cleu that it was approacberl by a retail tenant looking to relocate fiom its cur-mt location and that the reason €or tlxe Project is to accommodate this tesant, C°I'ha potential tcnant sougTnt an appropriate site witltin the aroa a.nd approached rs, I I,C once this site was found" (Proposal for Scction 404 & 401 LRC Copley Investc► Authorization, Atwe1l, LLC, 20I0)). It is uridispiited that this refers to Wal-Mart and their intention to relocate Their current Wal-Mart and Sanr's Club store,s at my ccnter, 'Roscinont Cnnmmons in ncighboring Pairlawn, dHo, to Alfilicanl's proposed development, less tliun one (1) mile away. Wal-Mart's stated reasnn for the move is to expand the current Wat-]vlart store to a"superstore:' The Wal-iUlart building on Applicant's plan contaius 347,806 square feet of floor aerea. 'VVIYat Appliraut has failesl to rnention is that Roscmonthas approved 4Val-Mart's proposed expansiou to a"superstore" at its cutxent focation. Additionally, t}re City of p'airlawn has indicated on nutnerous occasions that it will provide wbatover approvals are neccssary to pcrmit such expansion. Wal-Mart has expressed no interest in expanding its current Santi's Club store at Rosemont Commons and thc Sam's bWldmg on Applicant's plan cont,ains 136,367 square fect - a re,markably similar size compared to the existing 139,249 square foot Sain's Club store at Rosemont Commons, indicating that there is no niatereial cncpansion of ihe Sam's store desired. 'I'lius, the logical result is that an expanded Wal-Mart 5-.ipmtore and a currc;nt-sized Sam's Clmb can be accon;moddted at the present location wiH-k no regulated strearn or wetland innpacts whatsocver. This alternative sbould be addressed in detail by Applicat ►t and, failing a reasonabIc explanatioii of wlty this alternative is not possible, the Application should be destied.

Tbe Akron Mehvpolitan A,rea 3'raaspoTtafion Study C"AMA3'S") staff produced a mennorandum, dated September 15, 2014 {the "AMA'I'S Repoirt"}, cvalaating the impacts of Ibis rleveiopment project and ultimatcly expressing c.onaern ovcr its undesirable consequences. A copy of the AlV1A'1'S Reliort is attached tus Exhibit B. The AMATS Report is instractive on the Alternative Off-Sitc Analysis because it indicated tbat aii additional 32.13 acres of land, adjaccnt to and directly to the south of the proposed site (the "Adjuining Site") arc zoned as `°C-3" hil;h-intensity commercial, and that "all seven of thest~ remaining pat9ovis will be fully developed to the rnazimum allowable uso and intensity." It is well-known that highest profits for dovelopmcnts of this sort come not from the big boxes but by developini; adjacent parcels for compIimentary users wlio will pay high rent or purchase prioes for the opportunity to be clnse ta the big boxes and the major traffic they generate. I bave reason ta believe thaf, as one would logically expect, some or all of the Adjoining Site is owned or controlled (by option agreement or otherwise) by Applicant or its current or potentiat paxtners ar affliatcs, including, but not Iimited to, Marbofer Developmevt Company, LLC and Bircls Groap, LLC, for just such purpose. In fact, I have beeax

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SUBP 00126 -

advised that ApQlicanthas begun oontacfiing Rasetnoni's other telants and tenants at vttier local c:enters to urge tli em tD rclocate to a much-largcr der'elopment anchoxed by Wal-Mart and Sam's Clnb, The Adjoining Site is the on4y place where Applicant could accoinundata thcse tenants gi.vm that tlte project sitn is fukly utilixed forthe Wal-Mart and Sam's Club stotrs. ninercial retail faailrty to Applicant states that "itjhis project's inteiit is to construat a tMv co► provide the resiclepts of Copley Totunship, Ohio and surrounding communities with a larger shqpping facility that offers a varicty of products and scrvicses." Alilinugh Applicant states that the area is fully'Vuilt out, it neglects to mention the Adjoining Site.

Applicant sl•iopld disclose ifit or its current vr potential partners or affiliates has any intere (by option agrcement or oti^erwise) in atl or a portion of the Adjoining Site and, if so, wl^y ip or control e;dsts, the parcels are not idcantified as viable aliennatiwes. If snme cflrnmnn ownersl► current Application may not identify the proper arca as a single and complete project, as required by the rules. In fact, if all or a portion of #he Adjoining Site is under the de facto contrel of ,4ppliMnt or onc of its pariners or affiliatcs, #his may very well be an attempt to cireumvent thc s€ib-division rule to limit the overall project rcview to a site that, by its very nature, dictates u.navuidable impacis to regulated wetlands anti strcams rvhile igtiorhib thc Adjoining Site with nfl sneh impacts. If Applicant has any interest in theso parcels, vecause of the apparent lack of wetlands and strcams, they must be included tn a ncw non.-clegradation plan : ;. la support of its location, Applicant states that "the eAsting xetaillocations are expericncing very higlr ievels of congestion, and thercfore declining visits" Howevec, Applicant cites no autlsority clusion or how the proposed Project wou3d not exacerbste any existing conditions. for this cax Ferhaps Applicant► emx provid.e the safvs history from ft curxcnt Wal-Mart storc to support its deelining visits assa^tion. Additiartally, Applicant shauld fxiovide specific eriteria for the selection of this site as the mtty viable altemativc, as wcll as a detmled explanatian why the ref,ercncci alteznatiwe locations (and otbers) will 3iot work. Onfy thcn can a reasonable dcteamination be made if other frasible Otern.atives are available and, if so, that thc Application should be denied.

lqon-l:legradation Alteraetive

If, during its review of the pi-oject alternatives, the USACE rules that ihe Adjoining Site is uaider the de facto control of thc Applicani as noted above, as per its "sub-division" rule, the noxx- degradation alternative C*:N1aR") presented to the OFnA sbnuld then includo that lacatioat. Available aerial and topogaphic infonnatinn shows that the Adjoining Site is much tcss llcelly to have rcgulatcs3 streams andfox wctlauds. As it is bighly likely that thu Adjoining Site has few if any ructlands or sireams, it seems quitc likely that a viable NDA could be consiructed on an expanded Project site that indudcs the Adjoining Site without any iinpacts to wetlands or streams. Tbe Appliu-ant must adclress this issue.

On 5ite impact Minimicat€4n

`T1te nex.t sequential step in the watexs or awetlanr3s to the greatest ciejgrcc pas 6 P wh le unavoidable impacts to regulated

00"127 allowing for a practicable site dc.•velopm.ent_ Section 3745-1-05 ofthe OAC provides specific directian as to the vaiious allematives to be considered in the projec# review. The definition oF the Minimal Degadation Alternative ("MDAp1) is "2n alternative, otber than the applir.ani's preferred alternative, iucluding pollution prevention alternatives, that would result in a iesser (A)(14)). The Applicant is required to lowcring of watcr quality" (3745-1 ^05 Aaatidegradation provide: "Descriptions, scbema.tics and analyses of non-r.iegradation alicrn.atives, ir,inimal. degradation altematives and mitigative activity tbat tbe applicant has considGred." [OAC Section 3745-1-05 Antsdegradation (13)(3)(e)).

Appficant has pmvided a site drsign as aminirnal degradation alteznative (Appendix VI to the Application). Applicant has also statcd that this plan is acc.eptable tn Applicaut, as it `^ninirnixes the loss of GLA [gross leaisat7le area] to a level that is acceptable.'° However, no data on alternative design aitd operatiori, ineludi3ig appropriate cost cstimates, are provided by the Applicant. Ordinarily, information on reqnired huilding sizes, whether based upoit tmaut recpiiscmcnts or financial projections, must lre provided to svpport tlie assertion that a particular plan iuith particular square footages rc.^p.resents thc true minitnnm degradati:on plan. Howcver, lxTe, Applicant provides no data (financial or othcrwlse) to support the illusory conclusion that 110 srnailer btiildings can be designed and oonstructed which reduce or elimbat.c the impacts upon thc waterways and wetlands. Additionally, Applicant apparently believes that its estimated uasts of $500,000 to $700,000 far c4nstruU6on of an undergoanid storm watGr systen and bioswales justif es the stated scluare footages (and the attendant ineozne aecessarY to pay for such system), thus jusdfying the eonalusion that its MDA plan is, in fact, the niinitmmn plan it can builcl_ Although no plans or specifications showing the undergraund pipe sizt, pips length, or sprcific design ara provided, it appears to rnc that these asserted but unsupported costs are grossly overstated and that, if arljustments are made to refleet mure accaratc costs, t.ho rotail scltrare footages neccssary for a f nancially successful devclnpmcnt can bc decrc:ased, and, thus, the dsgradation of rcgalatcd streains and wetlands can likewise be decreased. The OEPA cannot make a reasonable evaluati.on of this M17A without detailed supporting documentation zegarthng square footage requircmcuts, Onancial rnodcls ai}d construction costs evidencing that any further size reduclions and stream and wetland impacts would be financially impossible.

Applicant'q MDA does, lsowcve:q, shnw fawer regulated wetland and stream impacts. The ,uinima3 deV-adation figute providc<1 indioates that a total of 935 faet of regulated st.ream and TIaese numbers indicate that 563 feet of 0-955 acres of regulated wetlands wiil be incpacled. However, the tezt in Sedion 7.2.2 stream auxci 0.629 acres of wetland iznpact will be avoided. (page 13) states that only 282 feet of stream and 0.29 seres of wetland udll be avoided. W#uiah is correct? Firrthcrmorc, Applicant admits tllat the rernaining 0.29 acn;s of wetland may also bo impacted, stating "the cliance I'or survival for the remaining rTretland will be dvc:reased." (Page 13, Proposal for Section 404 & 401 A-athorization, Atwell, LI.C, 2010). Has this indirect but apparently likely imisad been added to the total? It appears tb4t the actaal regalated stream guul ivetland impacts (direct and indixect) are currently uiilaaown. Applicant mtlst be required to clarify its oaniTicting calculations and snpport the sarne.

The proposed iVIDA uses underground storin water stozage to reduce its impact to wetland.s and strearns on the Sam's Club side of tlre davelopment, howover, thero ore no plans that show thc loeatioja and design of Phase 2 storm water quality features. OEPA does not typically approve

SIJSP OC1128 undergraund storage without water quality features. Applicant refers to bioswales but must spccifcally identify and provide 5-pecificat.ions for aaty such featw'es. Further. Applicant must explain why the same cannot bc doac on tlte itlal-Maif side of the project, tbtims furtlter reducing wetland and stream -impants. It appears that if yau replace the above-ground storage there with the smne undergrround storage as on the Sam's side, yoa can slidc the building North appaoximately 120 feet and ianpact even fewer vvetlands and strcams in the middle of the site. The use of t'bc undcrground stonn water storage has the further advantage of increasing the opportunity for on-site ntitigation of wctlands and streatns. Tlic Applicant should also be required to implement green designs such as grecn roofs, permeable pavements attd rain gardcass, fiutb.er reducing impacts.

The ,Application implies t3rat the additional ttndecground storm water storage would be too expensivc to construct, but no financial data are provided to support this contention. I}urtlterrnore, this adcled prnject cost would he significantly offset bccmse much less wetland and stroavt tnitigaiiott would be Tcquirod. As the cost of stream znitigation is typically estimated at tnting tha design costs), this would result in $200 per linear foot to construct (without ca ► considmable savings to thc Applicant which could be app3ied to the cost of additional undergrolmd storm wnter storage.

The OIrPA cannot ntakc a reasonable evaluation of tlxis alternative without detailed supporting dooutttentation regardiiug sc}uare footage requirements, ftnancial inadels amd constractiott costs evidencing that any fuxtb.er size raductions and streun and wetlan(I impacts would be financially iinpossible, all of wltichareprovided izi the typica€ application sn'6mission for 401 water quality certiftcation.

8ince the size of a retail development directly impacts the need for parking and thus the overall developed footprint of the project, consideration should be made for a one "big box" development coupled with several smaller stores. Xnterestingly, Applicant at some poi3nt submitted a different xi-dnirnurn degradation plan showing sucla a layottt. (See attached Exhibit C: 2008-35-SCR, [.iTSliocalogRun,Suinmit,Olrio,Minimall)egradali4)nAlternativc.pdt). (ihc °`Sinogle fiox PIatt"). While the A.pplicant's Single Box Plan did not sliow a inateri.al decrease in impacts upon regulaied streams and wetlands when compared to the minimunt degradation plan included in the Application, a simple adjustnrtcmt of the layout of the site can be made that results wetlarrds i npuct. (See attaclted in a 94% reducttorr in srrearrr impact and a 75°/a reductfosx in ► Exhibit D. "IZothrock Road lietail C".entcr, Copley I'ownship, Ohio, Milrimtun llegraclation Plan") (the `°Adjustod Single Box Platr°'). This Adjusted Single Box Plan pznvides the same parking capacity and betildiug square footages as are shown on the Single Box Plan. VJhet3aer or not Applicant oonsidered a Iayaut like the Adjustcd Single Box Plan is unclear. However, it rnust explain why this alternatiue, as well as any other alternatrves showing less or no impact on rcgulated streains and wctlands, were ztot eons7deired and sniftmitted as viable Minimm.l 1}egradation Altetiaa€irres.

The "Adju,sted. Single Box Plan" would also provide for the opportunity to havc all of the required wetland and stream mitigation on-site. In addition, this plan would also allow for an e benefit of allcviatuig sonie of the existing oversized stonn water sys#ern, thus having tl►

SUBP 00129 vj

flooding problcros in #his snh watershed rather than cantributing to additional stoim water ^noff.

The ahovc infonnation needs to be fu9ly considered by tha 4EPA in its determina#ion of the Applicant's NDA and MDA altenvative_ Until the basic questi4ns related tn these alternatives are resolved, there can be no oaml}rehensive analysis completed of tbc preffired, vzinimal or lxon degradation allenativea, 13ased on the apparently available alternatives, and lacking additional information substantiating Applicant's own alternatives, tbe Application should be d4nied.

Spec:fffie Water Quaiity Issnes

The streams and wetltnids on the site have increased hnport:ance to tlie overall waterslacd because tlrcy are the headwaters micl c.~urrently provide a significant buffer fro,n pollutants flowing off the interstate and into strcams and vaetlarids faund furthea' downstream within this vratcrshed. Wetlands on the site arc both catcgory one and two, and the photos of the streams appear to show meandering and poo!lriffle coniplexss. Applicant asserts that "during storia cvents, the wetland has an insubstantial c#'fect on flood storage and filtration ol'pollutants" (5ection 7.2, page 11). Th.is is apparently based on a detcrrninKtion that the wetland $"lies on a 3.5% slope and is approxirnatcly 1-2 feet higlier t1m1 Streatn L" No data on estimatcd or mcasnrec3 stream flow is preser>.ted, so inferring tiiat the adjacent wetland scrves no fu.nctian to dowtnstream flow is impsoper. fn fact, tbe gearnorphic location of the wetland (clearly adjacent to the stream) appears to support the fact that the wetland is indeed acting as a functional floodplain wetland and provides the inipcrrtant water quality functions typic:ally expceted of wetlands in a beadvrater area. Flooclplain wetlands provide flood attenuation, espeuislly for cxisting flashy Urban flooding, natural filtration of pollutants, sediment trapping and nutrient processing,.

The pxctures provided in the stream documeiltation appm t0 belle Applicant's assertion of a strea,n `"lacking sinnosity." Applieanl also states that thc stream Iacks pools and riffles in its middle and lowcr reaches, and, as a. result, "thcre is little or no cheinacal or plrysical influeczue iDn the surface waier as it passes though this seation of stream," Again no data are provided to support these cmtentions. Such illusory conclusions are not snpported by a basic, aommon seuse review of the area. As snch, the t]EPA shauld re-view this stream and dGterrnine if Applicant's asserfions are correct.

The strea111 and wetland fanctionality, even if somewhat dirainislied duc to man-anade alterations, is of incareased importance due to tlxe ioc:atiai, of these restiurces avithin the watersbc3d. It appean; that Schocalog Ran, which is located irnrlaediately dox,vnstroazn of the project site, is considered a warns water habitat streaan, capable of snlapoiiing a conununity of warnu water aqnatic organis,tris having a good species diwersity and funetlonality. Replacang the existing upstream natural wetland and stream functions with low-quality nnderground storm water starage, a few biosvvalcs and above-g-round starrn water ponds will not replace thesc lost f-tuictions, and will therefo.re l"d to a degradation of the downstrearxx water cpiality entering this desigr,ated. wann water 3ialritat stream. In the sunu.nea, the underground starm wu#x pipes can be expeCted to collect hot water from pavement and rooflop runoffs and tben discharge the heated tivater downslreann, potentially raising stream temperatures and harraing its Snabitat. Siniilarly, the discharge of stagnant3 oxygen-depleted water froin above ground porids will nlso negatively

SU BP 00130 inrtpact the downstream habitat. Changing the ejrLire 40 acres from a naturalfy attenuated, undeveloped, permeable watershed into a fully developed, impeFmc:abic hard surface dcveloprnent will inevitably result in a decrease in clownstreaut water quality. Urban storm water systems typically result in increasc.s in the intensity of flashy doumstrealn flow following stonn avent.^i. The increased flashy flow will cause tlie dowastFeam reaches of the streams to exhibit increased down-cutting, banlc erosion and increased sedimentation and turbidity. Stream 2, although stnaller, still has a long wetland (Wetland C) located between its hydrological origin (4-inch tile) and the acquai start of the strcam. Again, Wetland C clearly pravidos the fflll water quality functions to surface watexs prsor tu the flow exiting the property.

Atl of these indirerx impacts are ignored by Applicant and must be addressed. As part of tlie on- si:tc reduction of water quali€y impacts to the overall watersbed and especially to Schocal.og Run, Applicant sho-ulcl be required to maximize the on-site use of cffective, ftigh-quality "grecn" roof technology, including, but not lirnited to, the incorporatioxr of pEm ^^f^^ ^o,ul dre&uit inf being dlrected to retxn gardens and the usa of grem roofs, Anyt g• denial of tlre Applicatioxi.

Mitigation

If both of the previons altentative analysis steps are fully addressed and it is deterutinecl that irtnpacts to regulated streams and wetlands cantiot be avoided, an applicant is required to provide adcquate mitigation for unavoidable isripacts• lhe mztig-ation should ideally be located as close as possihic to the ori.ginal impacfs, within tlre sarne sub-watcrshcd, if suilable mttigailon opportunities are aveilable. INs is to cnsure that any detersaration of water qulity is mitigated as close to the source of irnpact as possible to reduce further downstreant impact within that wrrtersheci. 'I"ae proposed mitigation site is located in Wihnont, Stark Coumty. This is 34 miles away, and even fartIier down the waterslied if ineasured by riveriniles. This provides no watcr quality mitigation f4m the miles of the impacted watersheci abuve this tz,itigation site. Furthermlore, it provides no bet7efits, cnvsronrnental or r}thcrwise, to the impacttxl local -ommuni.ty. Applicant has not dociunented any effort to ruitigatc in close lsroximity to the ^. impact site- If any common oontroi of the Adjoining Site is found, then it should lie evaluated d corxxdor relocation for tlrc prcferred alternative. for use in mitigation such as a strearn/wetlaz► 'fhis Sand could also hc uscd fa:r mitigation for the ruiniinal degradation alternative. Even if Applicant is able to dernonstxate t}rat mitigation on the Atijoinirtg Site is impossiblc or uthorwise unsuitable, it should doruinea3t that local cities, townshilrs, MetropadCS or other public catities were, at a minimum, contacted for mitigation cypportumties closer to the impact site and explain why thesc opportunities were unsuitable.

p'urthcr, such mitigation should account for both dzrcCL and induect impacts and nicorporate mii'sgation for the more difficult-to-quantify, or temporal, losses tn the rnviunruucnt. Tyl}ically, this is accoirrplished by increasing the ratio of mitigation to impact to a ratio greater than 1:1. Applicant states thst far an irnpact of 1.59 acres of wetland and 1,+198 fect of stream impact in its prefersod alternative, a total of 4.0 acres of wetlasr[1 will be created, and 1,500 feet of sircam nnhanced or xestored. Althotrgh a typical 2:1 minimal rativ threshold for wetlands is achievcd, that is not the case for the strwm irnpact. A minirnum of 1.3:1 ratio is Lypically roquired for

S1J6P 00131 mo.t streann impacts. purtlrer, given that ilte proposed mitigatinn is sci far away, even liigher repi:ae.ement ratios for both wetlands and streams shotild bc re.quired.

Applieant indicates tbat it is still in nego#iation with the Wilderncss ['enter, tlu: proposed Applicant says, inore detailed mitigation site owner, for the proposed neitigation. As a result, jttitigation plans are not currently available. The drawings and supporting documentation arc streain itiitigation. This is extrrxn.ely generic, with only one "typical" dr&wing provided for the sbonld be considered wholly rrnacccptable. Uattil specific plans are provided, the Applioation incomplete, as an cvaluaiion of the proposed mitigation cannot occur until such plans are ptvvided. Rurther, even upon submission of more specific pSans, Applicant must demonsirate why it canuot compty with the proximity and increased mitigation ratio requiremuts discussed above. If it cannot properly do so, the Application should be denied.

Regardless of the concerns expressed above, it has already been shown that the Project could be re-designed to reduce wetland and strearn impacts and pm'vide considexahle opportunity far on- site nvtigatinQ. The Applicant should be reqnired to adjust the current proposed plans to incorpoxate tltese alternatives or pravide sufficient supporting financiai and/or engineering inforrnation to clearly sltow wlty tltey are n(it feasible.

')<`he OEPA sbould be aware of a lettcr provvidcd by the Ohio DEpartyneni ol'Natural Rr.sources ("OI3NR") to the USACE in response to its public notice for the Project, a copy of wlsiclx letter is attached as 132.hibit E. As you epn see, ODNR shares our comcerns aliout the impacts of the projeci and Applicant's proposccl mitigation, stating "tl-ie site where the impacts would occur is the only location in this immediate area wlaexe ecological services are being provided and relrresents a signifieant loss to the vratershcd. It would bc otn preference that any mitigation for tbe proposad impacts occurs onsite." As set forth above, ibere are clear alternatives to the proposed layout that allow for anitigation ciilier on the Adjoining Site or on the proposeci pxoject site itself. At a rnlliixuum, t6c standards for streum aod'wetl•and mitigation (i.e,, riparian +avidtli, total area, etc.) contaiued in ODNR's letter should be foilowed in this pioject, mur-h, of wlticla, as lltave dernotstratecl, may be done onsite.

Sodueconornic Concsrns

Although it is recognized that the primary coucern of the OEPA is related to water quality, ths Applicant is recluircd to submit information on snore general, sociocconomic issues rciated to llte Projec,k. lt is assumed that these questions are uscd to fnriher evaluate the Projeet's benefits versus the burdens on tlte community. Question lab states "Desczibe and providc an estimate of the important social and econotnie benefits to bc reaGaed tbraagh this project. Include the number and types of jobs crcatcd and tpx revenues generated and a biief discussion on the condition of the iacal ecotutmy". Question 10i states: "Describe and inovide an estimato of the iinportant social and ecanonric benetits that may be lost as a xesult of ]ltis project. Include the effect on commercial and recreational use of tlze watcr resource, including effects oflowcr water quality on rccreatian, tourism, aesthetics, or other usc and enjoymatt by humans." Altlzouglt the OEl'A statcd nE the Demttber 2, 2010 hearing that it is oanmrned with only water quality issues in its 401 reviewt the anti-dcgradation questions clearly indicatc that socioeconcunic issues arc part of the evaluation process. Why else are applicants REQUIREb to provide answers to these

SUBP 00132 i

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questions? in this parti^lmr case, t.he socioecomimia issucs me ofpar^ssnaunt impostance to the cosuinuzkity. With respect to the socioccononnie questions and the Applicant's responses, in the second section a^'+rl HE of its response to Questiam lOla (Section 7.7 Gommu i iunaf a ostive mannerr Applicant states, "ihis projact, if mnstYucted, will impact tlle c€Sm^unity in p (Application, page 16). lt cites an economic irnpact study specific to this project as its sole supporting document. The repori convenimitly addresses only tbe jobs and taxcs allegedly create,i by the P roject, totally avaiaing discussioit of thc ancillary Soss of jobs an.d taxes resulting yzin ^tl^ a e enfire gic;m the closure of tlse existing storcs. When actnally ana=^ very ^^tnconelusian, thcsc losses, the unbiascd AMP.TS rcport unsUTpi^singl7' stating: The relocation of Wal-A/lart and 5an3s Club fi.•om Fairlawn to Copley 'I'ownship dtes not result in any rea] growtb, but only thC shi#ting of a e emnmunity to another- Any positive benefits successful «o#npany from or► resulting frcani tbis move are greatly offsct by the nume3rous costs to the loaal oommunity. Fai.rlav+ri ;uill be left with two large vw.-ant buiidings, during an econoxnic period tbat finds them unlikely to be fi9led again anytime soon. 1VSillions of dollars of public inbmstnicture investments in Fairlav+'Q will nm g(i undcs-utilizxd, and millions morc will be required to support the new development less #han two miles down the road. Without these ncw infrastzucturc invrShnents, greatly iucrcased traff'ic Wsll ovcrwhelln Rathmek Road and othcr area streets that wcre designed ^S accammodate limited resiclential and local traff-^c. (AMATS Repoil, p g )•

impact to regulatecl streams and wet!lands should be perrnitted given thc actual negative Wl y any soeioeconomic► effect oxl the ccymmunitics (as cnnaluded in tlle unbiased AMAfS Report) is inexpliaable.

The ANfA'f S study iìuther states: rccommmdations arc taken inlo aansideration, 'we All.er a)l af thc alrave a total infrasiructnre improvênt c ost of ^6,750,^04. These costs antieipate are cstiru.ates from a planning level analysis, and arc iiilended to rcgrese,at lhc xnfrastructure required to accommodate traffic gentxat3ed by the fi^ll build-out of all the Rotliroclc Road retail pTreels- section, Appliaant states that it will fund scrme rn the Cornmuni a^^d lde onal 2'ra{fIc I»ûct limited traffic iruprovements. Materials pxovided by the Applicaut at a public meeting held by the Summit County Engineer on November 23, 2010, a copy of which ntaterials is attached as >~xliibit F, state that Applicant will contribntc $1,200,000 to infrastructure improvements. If AMATS's unbiased forecast of $6,750,000 woxth of improvements is accurate Applicant will only pay $1,200,000, tlleresnainiz3g $5,500,000 could only come from publi fnr^dinS- result would be outrageous given €he net negaiiveeffoct of the siore relocation and Applicaatt's

proposed develapn.-►ent.

_ 9 SUBI' VV1J3 Ultimately, the traPfc issues aljuded tn in the AMATS Repart excerpts above go to the repart's ultimate conclusion - tliat this de3rclopme©t will have sigirificant negative impacts on the already- congested txafl"io in the area. In fact, Applicant°s own traffic study, recently completed by llRS', also aclcuowledgcs the increase in traffic congest3on caused by the development and recoxnmends its own sct of improvements to attcmpt to mitigate sucfi increase. Given the ovcnvbelnting evidence of the cerlain negative impacts caused by the proposed developrnetit and the fact that significant irnprovetnents to ihe existing traffic systetn are required simply to cnsure that aheady-stra.ined lc:vcls of traffe service arc not fttrther worsened, as supportcd by Applicant's own trafrzc study, its statement in the Application that the development "will help alleviate the congestion along State Rotite 1$'° is patently absurd.

VJhcther because of ihe vvl►olrsale failune on the part of Applicant to perfonm ar disclose even rudinientaa-y Alten?ative Off-Site Analysis, provide any supporting documentatinn regartling its pttrported nnixiimuin degmdatiora plan, provide atty evidenoe of even basic attempts to minimize its on sitc irn.pact (such as the sirnple one-big box sile plan adjustments the tuxdersigucd performed and encloses), reconcile its own canflicting impact and avoidance calcuiatinns, considcir higher-quality storm water altematives or expiain why they were not viabla, pwvide any data on why ostsite ar cloner mitigation is not possible or making self scrvimg ancl clearly unsupportable asscrtions about traffic and othedr socioec:onotnic impacts, it is clear that this AppiicaEian is lacking in nearly every tnaterial respect and sbould denied.

I look forward to the opportunity to discuss tlte Application and my

5incercly yours, l3erbet-t Nemnan Partner, Rosernont Cotnmons Dclaware, LLC cc Copley Township, Ol3 io The City o€Fairlawn, Ohio United States Army Corps otEnginccis Suminit County Planttirag tsomnyission Summit County Engineer

5 It^sworth noting thattt►etfitS traftictepoftwas based soEely upon the square footages spedtled for the two big- boxes and ignored ApQlicant's certaEn dcve.lopment oP the Adjoining Srte, an approach eerity similar to that taken irs this Appiicatton.

StJBP 00134 Exh'l'bit 23 I

May 23, 2(}] 1

VJAH..MAIL (T,ee.E4.Pitlwanlizlllss.Ce.mny.xa4

U.S. Anssy C-oxps of Emg`naoxs, Huxitingtan Aistrict AnW: CHLRI3 [?R FNNblic Notace: No. (2M35-TIIS) 502 Eighth Etret Hunfingtc>n, West Virginia 257012070 Atfa. Ms. I.ee A. Pittvxm

i'ublic Notice No. 7008-35-TUS lssueti September 15, 20M

, Dear Ms. piitmau: Ag you know, tlae u-n.dersigned •yubmitted cornxients tcr the Uuited. Statcs Arny Cor ps o£ eers (tl7e "Corp^j on Oitobes 14, 2(110 (tke "[:omment fJ_e^ra^ reg4diug a pxopasal- aad pngix► application (t13.e "Applicaiaon'-) by LRC; Copley ba.^re&,tors, LI.C (tho' "Applkcanf") €:a ^constrnct a ooxxmerdaI mail developrniut coniprisW of tarv baildiugs toialiig 147,8fl6 scluare ftd- ait3 136,367 square feet, wspeAvely, ona4I} aoxe.pmp.cdyi6catedwest af RoihrockR,aed:in Cvpley Towmbip, 5uiutiiit ConnEy'-, Oliio (tbi-, '1Dxaject"1- Aolicant tesgnifded to ffubi3c ooxnments, ffLF^^ • ineluding portions of ft ComntmA iAW, by letter daW Jana€.y 19, 2011 (tli.e "Applicant's Resposxse"}, a copy of uAneh tlie undersisnel only xeemily :received. Applioaut " ssti3mi^`ted a Gummulative 3aupact Assegsmex^r, lneparedb,g Afwe% dafied- aq of 7atiu€axy 25, 2(i7, 1 rIhe `^Mn.

LLC. Wb.ile I ninilerstand thht As you Iaiow, I am a tisztuet in Rosenaod Commans Delawaro, tltc public cmxment peaiod'vgth zesisrret to the AtipiWtog ha.s expired, AlapliCant's Itespmse pub1ic eornmoat antl- to and the Cftl. so woefully fag to respox

AbPlimnt'^-Hoii^x«

PagE 4 o25 --- Off-Site AljqmativOs Aual- s

I } ^.^

Applicxni,t'st$tes t'hat tlje alte'rr4a:iiv6 sites laaft Iiem ide:nlifx& lie=s6 they are kor ne,ar) _the "^mary m.afke,t awa." 'nte geogrgphic-scape a1"the primsry markct area as•slrown in Fir"re I is so Iimited-,nd 9e1f^sang a's to be pat=tly &sut`d. Geatainly. Aplslz'cant driee not aslc #he Corps to 1Sphevie that Ihe ptimrv marIdt area for a Vda1-Mert Supereenter, tylsically a regimal c3taw, is. only 1.5 :mi1cs wide by 1.1 miles-1o% (3ne catk only imagine that4e'houndvies for tilo- .air3eet area were dravm in Fipre 1 so that the od-y wioelaped. pmpe^.j p.krpoAed pzinmy nt► ► 'sliown is ALpplicanfs and siseaifica3ly, to e:sclnde #b.e *e iilcnfafied on Page 9 of 25 as #1te- "1Vledina CoutVSite ^ As- this= site hax= bmi mcntioned sevftal ti.mcs by Aoplicazst 6i7.d Wa.l- liog iia t'de ANJA'£5 :pulilio keaxuLg on Septemher 29, 2014 {tho ".AIVfATS Heariag"j, Mart, inclu► and sinae ^P.al-Mant guparcentErs. are typically regiond dravrs, =tho "Med.iga Cowq site," less tlaan -2 rilites 'wtst of the 12'rolect oa a-fivr^-laneroA amt also be in, theixpitirnaTy matw area. If- tb,e Froj ect; one mile frnxn the existing stores at Rckspanonf Conamom via a- mrvy tveo-lanc residentfal=road, is xn ft sme pzimary market area, tl3s.u aeraidy the Meclina Gcurty Site is as _.^VO1L It simply strains credtility tg assai otwise. Appli!ânt cannot be allgwed to i`cht^rry piGk.^' its m,alCct: grea s0 as to ensiIIê thut p4T-oi^r lOcatioIF:vî^l, s1^^c+B. If, as Applicant statek-,.rSA PW 5 of 25 "pioximity andlrir -Visib7]ity to I-77 H^s- al9a beddse of critioal iangortance fflr a originated oil SR 19 ^.^tilerr yahoso ^rheti is 'Iarger th^ the immediate. trips that arre (emp'has'ss adrlod)," then why is Aplrlicant's Izrlma.ey rnakct_area. lixaited to tho SR 18 coriridoP Ap^liânt must piâvfda data ^ê îc^ maalrc-^ au^. for simi^^.r Wal-ilîart Supercm#ers so that t1ê Ccsrps can deternine av7iat thoeeal msskmt aYea,•vrith iiunaediata trips not aU origiaating -from t1ê Ît 1^ ear^ôrg i^ and ^^z faCt, tl^^^ ar^ additlGiâl al#eâtxve sities twit^^n ât â.

P._-&I 0-s Qf5 vi.e crêria for. the rdaiIeis' relDcation apl9ea.r to be desigaed to xdmaetively jnsi;I'y the -Project s!W Wd to disqUalify tbo rcte.ilet's cmrrzd Iaca#iobs at Roseinont CoIaina^^ 444 aw not Qifeli^. gmerallg usecl for W. al Maxt Supex=ter sites fnuad ^'i many otLear-Ia.cations. Ais is r;speGially tru-e regatda-ug "proxinity and visibility to 1"77,,' the Onl.y aiterian of the s6vein listeil that Ihv ^.ôscd Praiet of.f 4^ aud t'he existing Rosmont Commons site does not. -A. sun.ple scmh frr Wal-Mart S-opercmters in lgorfheast Ohio sh.ows Iocattons•in i'.amna.-and Ataorac ftt are nearly 3 iiiilea `•`^S'a ctovr flies" fxom the n.e^ intzrstate or hi,*vray {I Tl. ahd 5P, 4?2, P;apeqiivety};. Madison, -Obio' ^vltl4 is almost fonr milzs• from die neuest hiphway or interstate {I 9fl}; Chardory Ohio wbich is over six •miles from tho neatest ide.rst1ate oi! h.ighway (1-901 arid othws. Thq li,st of Wa1-ll+Iait Sugi^wcmteFS °in Noztheasf Ohio with fwv!ray psnifinity and visilrility is. much -sliorter #han thase îtkout. CIeaTly th.is criteri-on is not a rcât ont and is knteadcd to attempt to d.fsqualffy the retaiIm' citirent loeftt%ori as an aheniative sito. TA iàdt, Roseanont Comt7nqns is only ghree^.quarteig. pf a-mile fcom 1-77. It ii; quite olear tSiat WaI Mart Snparaenxters- are destination pc&ts; hot ati'a11 dependent on vigiIsilityy to atttact impuhiva, dxiv6-by 6ustibiAee's. I^ fact other -anal1 retîl stoyes, nor"y mtiecli mosa reHan1 on iknpp?sivc, drive, iay customws, depend on W^l-ldfaxt-Snpe!'cmtas as-tlie Irrimar-y draw.

.A-dditionally, the zoning mitetm is -a Mso, ono^ 14umctaTEa eXamplc.'s FUe}in the pablic record whem- zonirag changos wexe ropested for otltcr Wal-lVlart pra3eo#s. Zoning clzanges are snmmrnaly al?pro-ued; 9sge*iy X* mqri^-pal'aty soes the Isxojeet as d sign^'icag ►t henefi4 to the coriunvnity- tJn1y df re-zoning has •almad.y.h= denied cam this c6tuion cauy any weigit.

2 sure3y Applicamt and Wal-Mart wqM not hP'e•tlJ-, ^flzps be].ieve ihat -avoidft• "Organized 0 osi.fion" to a prvject is the pS^iai^^ goal wli^ re^'e^1; or ot3re^r issires `^^ involvei, Pp es^tees 'allygrheztffio curreitlgpiqpwud PiA64 is so 'vocalty and xlnost univmgly-ogpt>scd-.

T'Iuthor, the critedon that the.pr.aperty 6an tseeci^moda#e a"gôtypi.cal" b4ft ft5r VTaI-Mart sn.spent: Tlie ar^z=t that'Wd^mart wisb.es to avm tbe sito in orcia to propel.y- is also very maximize profit patentlA. "maitttcin casi: caz;trol" is simply anathc.r wty ofstatj.rog.they wish-tcs The cxisting Vflal-hxt sffe p'avi.dcs the opportunity to be, upgradcxl and provide. Va1-Mart a xemonablo return nn iavestnent. ft is-rny nncl=tandiug tliat is n.ot ike Catps'- responsih'rlity ta aPProve only those ^vje^t desig6s that inajim-ize i?rAt., bnt to anthorF7e impacts ta watcrs of fho u5 whiie allowing a zeasoêabie. netarn c^zi inês^^, ^thesvai se; mast "gr^feêd" atb^^natlv^, WOllld 13G 8^1^3rQ4^€d. - 1-77 and State Route listed, "Ptop-arty can providc cqtW.vie«rs and & ccess to The i~inal mi.terisra -im-eztj Midst ht the propnsed locatioia,°' -As it is the onl.y location XS" may as well have said `T existingWith this eriterion. i'he alkma€ive sitc anOys1SI laust ^.se reaeon$lile cirit* ap^liei& to iiihiig stores in the-rMni', site and tailor thc azaaly.sis to gappoft that selection. A-Ppiicmt should at n.c►t target a pro-seleeted ^-d j raêd the Mîna ^ûirt^ îte, least provide VtiTal-IVI^s inazlcot analysis tlZat'appu-xjtl}^ p 1 g ro# ta mcsltian znarket aIlalY-ses Jkjy ot3er W4-Mar1 SupE=P-tFs-im th-, =g[ou,

1'aae 6-R o^^^ - ^xis^zr► Ma-d Ss`te

Tbe rirst -item itrientioned is tl'ie -alter"ste :gft analysis for ft Marl° s desire to reduce its r.aiban footpziut. tôw a^g two new l^rgo rekae^ buildings fc^^c Wal- 1ldait a=nd 8am's nrisi vaoafingtlie --xlsft buildino setves ti3 xcchice'fhe caib^n f+aatp^^ is iac^'iîica.ble. i^ fa.c^ it iitorcaes ft câ[bon foot pziti.t ^panîalLy, êss it - incaxrad is assumed tfât the cwenx Roseaaont Commons: wft b a• imra.ediatOy re•rle$s.ed; a ► ajgswnptidn ns ftflw discuss6i bclow. ApPlioarit swes that Wal-Mart is tntabl.e to Gxpinid- or pr îe =asv= of RQSeraont ron?odel, the existin,g -sitr, s-t Rasemomt ODIPMons. Sp6akft t eDmlif}13s, and Vv3th pumonal Uavrledge ol''the Wany &-cuasdt}As betvdem liasemorf Corhnons a^d Wakgad, ilta1 sta^cnt iq categonrag'y false. -Wa1 Mart devdQped'apJg to expand tlie Wa1 Mart stare' at Rosemont Commons sxfe, vrTiich pian W°as approwod by Itosemont Coznm.om and for ^h.ic3r plan tlio City ot FalrTawn pl^ged xts so.pârt. UnfIDrtunatIi-y, WA1 iVJ art aM UpOY ciecided nat to [email protected] oplion. While it-is VAainjY Wft17-16W s-pz'eqogati~re fa decide whe&r o.t :ffot to proseed with exPausi.aa plans, it eaw(Tt lator claim that the teaan that it eaftliot stay Îêre:ii is (^r^ no 3mgaat an ze^ât«^ sfx^.S arnd w^^) ^^+hy it .zQ-^ ^' to aî^sen^ location (with si^Gant^-t) is becausc its ^nn needs could rôtê acc4m^Rdated

It should a]so lre nated that VJaI Nlart has never eXVcssed an iDterost in. exPan.dirtg "ae SaWs -Clnb 'sWre at Rasemozzt Commons. infwt, tbcprQposcd Sam's Cluls'stoEe etikie Proje ct'ls 2,8N squ^ fc^t s^n^leg t^ria^ t^ê c>ênt locatia^ at I^sernot^ Cmô^.s., I 'f'!ze Gazps vvîl ^.^y rlot:e tlia# xôt mce in Appiicant's êspans° does A^licgnt state tha^t the aarn.'.S Club stoze n^ds to ed.p ^t appaxs phA ffi6 aazly feasan foi the Ss^;'s Club stb^-^ to sl^c^ 'its i^fag6 a.ud move lem iian One'mile away to ihe Pzajeot is to enjaY cmtaxn eooII"^^ of.v^r&tion, not sizpPortcA

1:3rN:L^

^ by :any :@L&ul dafa., malting From its iocation bWa Wal-Maxt, Tlre sama cwmmies oi• -dper.a'fiaii, it shvultT bc notcd, aie enjoyed at the cvYrea locatiorE in Rosomont Commons. I,iev4rfhdes,s, ueriaii^..y. Appliim# will a.clsnowle.dge tb4 many Sam's Club stoxes exist on different sites and-izti. di€1':'ereut deveinpmeats from Wal-Mart Stxperceritffs. GiWa fl&sud the a4areiit]aCk of a needto e4vM tlse SaWR Glub'st^rcr, SaiWs Gtsb, ata min[mxm, could sta.y at l^ase^ont- Comgions, ail,pwirg a Wid °gart Supewmtr developmEe.of, with significasstly lcss impact u.pvnrcgalated vaters, at the Projwt. Wh&c tUs maybe a less prafitable and thus less 4esiir461P soluiion for Apphcaqt, it tVmeWs yet iinpther altunativ® analysis aption ibat Aplplicant hes -faUM to cansider-wdlor ta cxglabi why it ia.econoraically -un-fmsibie.

^,PplicarA states t1mt it 1» detmnincd that fhe a.unent Icil+.t%es "canu.at be modifietl to pexmit such-enhancemen.ts avsky iight-day-1ighling ofthe-stare,Teducing ensrgy siue to ligbiang and ihe #Îpiexxeeîtatian of awhft anemisiw ro^f 'y A.pPIicads - ResPonse is tho fiirst ti^ ât Rosemont Commons has hmd mention of any of what A;pp3is.ant term.s "samewkta.t minor e:6b^fidenie3nt§" so, obvfously, nm discusaiion was et' had in tFsis regard. (?f course, It.osemunt Commons; .as part oi` aauy expm-ision, would accommoda.tc Wa1.-NlaWs ne(ds vtitix respeet to thcse "minor enb.=mnent9" bovrrer paslblef.and, after Gon.salting wiih its eugineers, is aware y all caArl not bi) impl=â^ at Xosemmt CornmWs. Nonetheless, Apl,lfcant af nv xeesqn vvi► would have tlte. Corps beli.evo -that ffie only way tM these coumpts r,asx be implemented is tlsrQitO coristr'uctlah of4vo nevr builcliv-gs. AP,aln, the'tioth in tis respect i.s qzite differeni. get i0rt]_t below ate ]szit afew. ,locations in Northmst Ohio where Wa1-Mort -was ab1o to noize Wstiz.ig buildings and still imple^^n.t so= ar gll of ats-d'greun fwhnoXogy" reûkemeuts ix ►. thi,s regarsl:

sirongsville - do"fnpl°ted 2009 Ydoxtti Olmstcd - completed 2009 Hxooklyti - Wansafln stfn.tixlg sjsrlngi 2011 3a&smn Townsliip - expansien slarftg spring 2011

Applicaiit sWs if iat it is cl.ifficult for Wal Mat ta oocuPy sites f^ it ciaes not own beuause they do not have cQntml ova faoifity maintenance. CerWy Applimmt Wonld not iave the Corps belic'sie that-itt avda all of'iii situs. N3ofe iuapotantty as -it relates t4 Rosemont Commons as an aiterntat?vc qitA WaI`Mart was off€rQd-tIs~ c-rpport<.irri.ty ti:^ pjuChase its sites, sft ovw= it did.unt aac,opt. Agaiff; it is Wai.-NLact's pmrngative to decide Wkther to own or lease sities, but it cmnot 8eaPuG to putchase its sites and talm nde ffig the C*L=t ltrestions " not viable because it daes srot-,^w^th.em.

Applicant aisa aoalyzes the vgays iri wWch exgans%on at 4asi;:=nt tsornmoars woidd dcvial$ siuee nn -*qaUsiozx•o¢&e ga&s Club hag ei•=been'taiscd, ftli 1n7aI^lvae,'s prototype. Again; one xntst as;€ne this is a re^mc-e 6rEly tn tke Val-NJaxt sfhke. W®1Mart au.d Rospraant commona an-fact di.scu.ssed fiar qui€u=somc ti= WA-Mnrt's.desired expan.sion,:caen asriving-at, p]atts that Weg'e salamit#ed by Wal-Mait aiid applove[i by P'osi=noft Comntons. At no tsm:e did âd_Nl^rE ev€^ €^cpress aQozececu t1,at t1ir^v pl^rk^,.ir^rat Walîtâ^ i^p^Ptepar'ed, did not m^. i^ts -own needs. I^rl; o^mild .Apglir,askt have the Corps belieVQ t13.at Ws1-Matt Mared aud ixp,Mêtl plins for fi4a y6rs tiaa^ qev^d i5rom ifs pf6tatype so dea!qialIy as to gmerate A^splica^t's hu^l^d list of •deviations?• 'îs, a& ^+^rith xm^.ch in the App}icatson, cienes Xt)gie. Ncrneffieless, tt isimpofk^tta a#e,^ ei'di of thp Pi.trpW.-tA devsa^flAS. i'v- the âr-îx^g and ped^friali ar^. fimilat:itns rdatiiwe to exce&ft slope's • Site saFety Coml3tons expansiun plan ('irepa-eed Iiy Wal- approYecl Rosmont X^z stopas in the slo,}e no'r applfedblel tega't Hat't) dzd not 'e,wexd Wal-Mart:g 3% maxirnum

e*ence. o OjiYy ono maNn •vestib4e re a^^ b 6â1-^^rt ^^ orie 1`fie approved Rosemotrf Cansmor^ "iansaor^ plan (p P y .Fâ^V^ver, ^vit^d minvYcîari^ Wa^^hâr^} v^st^&uIe e^xtYarêe. sho+,êd^ ^fu+Q vesf^huZe erEfrarrces. It^ , ^`.c#ctr +a^ g€#t tie€' ^ ^ P by eratrarecar.

^ ]êdu^cea'stlnar$ foo.taê. - bt^diîi^g an dîe aoyiived 11oser,tont C'ori9^trgs e0a]^, I swri p(an ^'âe ^pa1^^c^ T^ca^hlc^`rt WaÂlrrtt^ is ^t^r than tiê prapased bcu^d^r^g at t^r Prêct (IS^;3D9 (Frepared by earHer, Ehcê ^t^s taever beerc ^ squa]-e feet vs. I4-7,8Dî sqzxare fee#). rfs -afe.raftolted tn,^cict: tlas px•aposed stoFe at the r,PosaI to expao the &m's Club stare aFrd, P_ stare aG-Rosernant Crxmmvds. u z;888 squca'e feet.fittudr ^:tke:c^ rent

Lin-dted grocery o^îng^. exâ^sidrt ^r^Ca^ ^pê^^red by Nâ^^r#^, w^ ^ a ^ a^xpio•ved Roseâofii Cd»îtio^s pt'apo"L-d for '*e pa'aject, +vDtU have built^jg, 5,060 square feet bigger' flriW t4# rteeral's. - aceommoclafed any of Wczx-MBrFs g?oceT-y

ra-, Umft,;.d fies-h pxotiuee offesings (in part dm to the opeaatacanal lixnitalions of the laa&ng doclc^ tâ^ ^s ^c^ced by ^lte sz#e) ap^xr4yed ^serngrat Cormraoxis )âl-.Mar.t têver- ^xe.ssed crny cortce^ •^'$th tlze prepar^d^ ^^ `^t^ ^ls^rd. Gwrengineer-s affvas)^ that ariy sdch ek^rai^vitr:i plan (w^ ^t sete conrer-w couu-be ajequatelyand easily ^êssed, -

^ Redl.teed numberof local ve^ withia:fihe S"oRL' amPossibde tu ve'40' the aecuracy qf thas'stateme^f, Withom ^ , fur'h^er Womtativn, it is defies fogie ti'iat a retncuted store thie"^rartgs of ca rt+^le,^ o^a Homever, it certqinly Rasernont Gonamons, would atPractrnore lacat vendars,

.^neâ"le lass to dak. opcwating e4,16e10y as a amlt, af not being able D4 upgradelreplace tb-oir b-aild-ing• syslujiss wifh the newest, 3nast eufty eff.t:ientJfe,aat cmphas^6 addeil): ^^^^â^r pollu#ing altcra,alives ( (ar. asserts here, ag it dae.s throug•^Crraat /ippliccaât-'s Response, that Applicant alia^y*k includarag those xtith it) ccusrwt (or w€ll not) eajeadlatî rrafieai usp;ee s ofits As the Carpw is tn the bu,AW-ss a, f' r-eo-pectto Rasem.orll Commons as-cuz alternadive sites IaId asse •rtions, Applic.artt s}rould be requirer1-to reviewing data and analyges- ciad 7ol regards). Nmrilieless, as r;ten[ioraec^ prrrvide spedflc data in Ati regard (and fn c^g !{^s neV.Br.appri,Sgd of •âbMarfFS ponCe-YnS in Owse, l11"GaS, RaSPFYloPlt Co€ldmO793 r ;r ,ahoY6.', ^r`

5- expansioia.Plurr.s that it pr'epur'ed, bg after carae.vultatiora appareritiy no8 addressed' by be. accommodaterl. vyit1j ozsr engreeers; w'e iire coia^derit jJiat ^u6kaj#ernsa#cvwv c=

Applicant states on ps$e 7-of 2:5 that RaWiiaa C` ,oDIJ"Ou ^^ s^ 16'^srt, ^ve^are„ unsuro to pl.ans refereaced by ^osemoz^t Ct^mnans axe tliose prep wliat this refers.

Applic=t sta#cs on pages 7.and Q of 25 tât' tkis ogly tWo altena.ativ-es for eXpansiOn on &e 'p,mernont :C',ommons sitv invaive demolition of thc sit4 and recux3btiaction of a rixhicdd 'gross lbasQe uav4 buflding or subsuzface parking, Firii, as has ^mu men{ivned numefnxrs tinaes, tbe bullding thatW'a13vlart alesigccti on the. Rosemont Co.mnons-sito is larW-ffian-t$a.fi px-oposed for the ProjccTr. secoftd, tho Wal-Mrt-dmiSocd Fzan nevpe.c coatisinplated sutsuiê park€iig. A7I 1ar-t ppcking reciuireisients• of the City ot Faklavm P?d W.41-Mart ituelf we fritt-îtQd _^ the^.Nal A► êp^red plan, vdthoutsubsnrl`gco parlsing.

Pnrtlau, Appiiicsnt states that the-csartent stnre 5ites are simply too smd1 toaccommodata the t3^pxcai âI-Mart and âo}'s -Ciub profnt^gical lztiildings aid tJ^t the nseii^ afe uiable-to owh rh.eir fscili.ties ancllists mmiy d. e4ign con.siaevafions that would he-necess ary liccause fho iazabili4y is in luck. WIn7.i,' Applieatd eouXd not possibiy to ®xisand to a full pzatotypo busYcling: Vilai-Mart suhmitt^ it is eritical koz it (an#^_i^ Cqrps s d kaow it a:t îae iê tbst Appli^r,'s Respoz^c was ?rnow that as part of caagoiug clisc^zssi.ous -witla. Wa^l^n't, Rosem(nt• Caxnnêm recently pmpo a yitt^V Xaôtt-iricorpeirataiig tlie ssme b-u1ding sizes a.ud faotpînts parlafig coimts and site aece.ss considercîons a^ are proposed at #he ^âjedt; irlc^^ mn'^ Wai-l+ît to alit^vff .frn zn^^^d vl.aii7ility Run 1-77. Fntthers this proposai would allow-Wa1-Marf:to own its facilities. 'fl#is ple af t4e c,leatest a.ltemative siik its irreqeut oigp, requWng yet anot* exau► absolutely na•ijnpacts-4a rag^dated streams:and s*redaacds.

pa eSof2542.'iA aRoffi-rockRnadSito

Applicar t admits fihat, sitxce ihe sulonjis&n of the ApOcation, it has Qb#asncd an oPtioA to ► disclosed amauot ot'the rrvaHat4ie aV-rCAge to thelSoutlr of t11r:••Praject sito. TE+e ^cl,eso an ux► ti^ning of tlis acsîsition se^s very ^%sI?^t. Past•Cîs p^ênt siiot,^s tbat A^licar^# vaaj ► mmt inoluds all prapeLEy owned er contro}Ied at the ti.tne of the Applicaiion. Applieant spXify on which prOperfy it has -olstaindct aa option and its prior eMrrrs tt) ôlat$ipL the'oplion, as well as whethex it has, sinca Applicant;s Response, again convepiealy pb4aiued W m4m xiglxls v,^th xespeef to otbor available pzn^y. lt should be ctear to t}ie Corps that Applicant is assembling property to be combinW vAlh the PTaiert Rix a sigxifioantiy Iarger d.evdopitymt ^nii7 'iiy zfb "phasiug" the acqdshions, it a0empts to ski-Lk the Corps' sOdivisiQn Wcs. Applicanfi cegainly realizes -titat the pmpoety #io thc Solith ef'the Paoject zPpmesnts yet anothce'a1tan&tive vite (whbro it appom th.at no impacts tn r.egulated wVUts Wouid i^ requlred.) and 'ss tbug syptmtatics.iFy obtaining (or not obtain.ing, as approprintc)• certain piomaf that site so as to, On an.e lWd, 'acgEe that it is not a largcr dcvelopftient tb avaid the alteWative site atxalysis ftaf t1ien, on t1ie ather band, maintain the a1oi.ty to dwve3ap such porcPls (wbich li^ly reqîqrna. impact to xegr^lated waters ar^d., thus, no input frona the Coxps) if frlie Ccops werc-to gcant the Applicatioft Frifh respset to the project, as cuzren•t:ly (and infent;aually) delin.ea4. As tho ti,,ing ol the parrais appeam tQ ould disc[ose, oa the re^co^, ^ play an imp4r^tt role-in si#e 3mpact ^Fnization, Applicsnxt s1 ►

6 and when .^pplic;ant or any agents ar^.ti^ axi its lêâlf initisfed cM^ts ;vErifh fê ovan.m of#he•- paroeis zegardingpumhase or the cption to purehase.

pâ^9 a£2S --- MexlinaCa Si^ invpstigated a tliind aite lRCated. at ;ê co•êr of N10ina,ûja^L irte Road and ^^ Ia ,ranger Tovns1ip- Th3s site is disrnisseQi as just mside, the Medina Cvun4y esstern bumdazy in C ngui.^^ az igec, p&'ary r®asons, 2oning, p4tenfial we&nds and^zk^t area. ^► ata ^r the site's fxontage bit s^roîld rea^,uirc rer i P^plslicant states that tlze zoning s app^g^ 1 daee r£ot r,c^nsid^ aîning the ne^ssa^' acsîng of the re^ pattion. Applioant apparea^t y zon.u3g-sinoe it is `Îot consistent with t$e Townsîp's coDnpxehensi.ve zatyuyg pla.u'7 and would A requiô- a^ditiazial iinpa^s to fihe residâts along Nofth lôclln.a ^t^ R^ cant tli#ed t^s if the a3onsid^d tl^zs site as a reai. one s^: at the AbIIATS 1'icar-^g, 1^ •C;awaly szfp- Tliere i_s k'raj_cct did aot pm^-, eed, Wal-Mart would nev effieless Fnave to tha Med nia. (3ranger To^vns^ Te^ling reao^g the -si^ aud- nn iudi•catioji.^pp^cant that srîed app^ of an o^ci$1 'clîa nf sttcb^ a l^pplitas^t }^:ovided no official record of a zeRzoni^.g r^^ or reque9#. Udt1 tjiis is dorie, tlae cuIzmt zoning should not kaw, any bezift on ihc vidbility vfthis site. Certaidy ApP1cant woWd not have ilie Crnps believe-that it wi.il Hover develop andWal•- ie tr'ablic wdnrd i's r^ête• witî Mad •§vill ne^rer move to a location that reqaires rezoning- V instanees.py propedy being rezoned specillcallY to perugt.a Wal-Wt :Logic wculd ccstainly to Câ^ger.`p^rnsliip; ih.e `òwasbip vuoulrl dzcfate that if Ûai 1►ât were iutexêd it{ xclora#a^ hcant e^c t..^--- at 'loast tutertaui a re^^^g ^^^y if not wclconze it. Tn a.ddx^, Aisp pzE-sses "{concesn" regarding " smpact remning aad developmciLt- vu.a-dd have on what appmr_ to be &= or inz residehts living setsss Medi3sa Line Road from •tlifl site. We aucli cnncern, if walyle, the irony should not be lost on the Coips fimt coizr.m ovez tbsce os four tâto, is . 1eo^miideftis apga=tXy disqnalifies flta Medina Ccranty si.te but tlie hnndz•cds of residen.ts affected ^Y tklie Pildfec^ many of whom ba-ve scbmitted cominents to tke Corps and the Ohio Envirrm2eaztal Pi•otectioa Agency, af.tendecl nuxaerous mectin.gs elL Masse, have written letteirs to the edftor of local n.ewspapers havc circulated petiilons asking Cc&y TowAship, S=zn.i.t : czîes and Iâve o^^rxiae ^gag^:in ather governnae^talltodi^ to prtlte^ tli^r pmP za Count^y.fnd . ect. a vcry vocal oaapai,ga against tm Project, does not €lis^^ the P ]

Secamd, Appliânt e^resses a corlce£n that since #he area was not famlnd, "it eoidd be Wet Ccnipm;s added} " Ccrtainly Applicant is not snggcs^ng tlia.t the Cozps allov,^ it to dAsui.ss this u osted wo^d. be acc®pta^le) based sim.lily ba a arentl G vi.abl^.site (^vhte^ ^7Vu1 âat 3âs agp Y` gg ^^:or eûwillirig to gerionoa even a ]auncl^. that it contains ^rettands. Applicant was ^parcntly u sfinple an.alysis of #s_ offliand tletzmlinatiou of a vvctland procace. Wo ae :mof. In #'act, tlti, lancl iR-a}qvvcl as-4 Cauf ield silt J,oam, wIh 2-6% slape, and is 0o1164ere3 an tPland soil witil ga 11ydxic in:cliusxdiis. The site has no mappcrl TJSF&WS wetlands tl1^3.7.227.^42,S51wetlan€^vvetla^d.htm1.). Feather, a. site 'visi^ 1^Y Dan Nci]F on Api] 2.3; • ^^'^ veêtstion and ^rlominafely ngian.d 2()11 ^snt cinly sho^ved a large amoact of upland ground [3^to laisf^zy; ^'îdeaced., canopy ke€s but3 in tê midst of onc of the z-iuiest Aprzls in No ^^ . êl^, clrain®d eoiis_ Fviclenr.e of 41d foundaficui sto ►®s ^^r^d a arg ôrtion of a^ ^t^ Th^ f^ti^qaliy a hoâsc aite. Wild stzawh^^r and ^g3is1^ ivy : site Oso haa a large nuinber of cberry trmg (faotual 41and tTees) ifirauglaaut. Thae grese sraall, ^^-h

7 iso3a^paois ofwater caÎ,sed by ^^' uProotecl t^s. The tctal arca possessissg ihese is4lated -feat^s âs esfi^^d to bc, at &Btx [ess tli;in 100X6f_E& *Qed6cl area, *140area z1^, lf, on1^r a s^nall.pa^fft^n ô^ the ^vcrall sits: Based nn.lsisbnric TCWxrls 'and the sito visit, ffi=e. was no: ificlicatioji'of any stzeains. XRisiA upon thd foregns"ng aualysis, P& Neff lias determfiued that a proposed in tlie Yrciject could he acc=pliihed W€rl^^^ and Senz° s: Club developrnent s-Rch as is on the site witli no disbabanee nf xegulated stwmm or wetlands. Neuafh&ss, Applicant cstî^s (bWcl on ainka_indicat^d dat^) tliat up to 2 a^ of fîiesteii vvvetlat^'d May ^^ jrapacipd; and tbis âPaat would exoeaa the, wlue af the PWPosed 1.56 acxes of wedand iropae#s -aad 1;49 g fbet of pfimsriiY idtefmii#Onf sftems. As ^.ia mre.m and wetlaiid 3tnpacts axa directly ^paâm of tle Sclis^calog ûn, l^sted as a5pvcial IIigh Q^tatifiy-^T'ateis co^tain.^ in OAC ^745^ rtete^zune) that th^ pat^fial hnpa^#s t,^ 1-o5; it is not reasonai^le to assn^,ta (and ask the Caxps to pOtential [Ox naa *existenf} -We Llmx^s xsless than the 1'rajecf's p^poseci imp'acts ta nearly 1,5£14 feet to an iuteranittmt strearn anci a.djacent wd3an;ds goun.d in 6e headwaters.Qf Schocal.or, Rm- .. :. Thp Oaf reason for disquAif'icalion af the M&44,â CQunty KiiP is that App]fcWt wislies to continue to ser:ve Vd'&4art's existang cagiomer base. It defies icgic tha.t the c6stiing customer 1,ft.e wauld igavol th.e extra cu3e xaile h.vrn. Iios=omt Cou=ans #n #he proposed Prajwt but tha Medina Cnupty site. That disimce-trauslat7, to au addid0nal 3 vaoOd n.ot I.ravel two miles 1a rnmut•es at 45 mibes an hour from Rpsesnoiit Coiwnon^pm a straiott, five-lane road, ag opposed in ihe ^Proj-eef vibicfi would r^3iire a^cêss vâ se^crai tums a2a^;.a wi$c3iag, t^c^-Xsne rî^^nîal raad: Finally, as Wa.1 Mat has 3ocated,many stores whcxe thexe is viriuallY no othee retail dsvelopf.id'nt and conaidezo-its'slf a d.esSnation claraw, itie, arpmen:t that tM 1ack.of ofhcr retail dso znad= thissrte unacaepfable;aud outîae,tlio.market ama fs-sPudous at best.

^'i Iica^xt to ^saziss the ivi^c^na Couni.y Fo^r tlie xn.any reasons z^nie^ ahave, it is 'impra^rf^rr.X'^ ^âiâlysâr^d=da.fâ^su rtin altanafiv^ si#.e a^ ^msuital^le. 1^,hsent A^fir,ant's pi^Vici%ng Ppag the APplimticui should be dftidd based si.mply ugon the fafluxe -Itii niaiiy ufisupported asser€ions, to previde the neaessary ait'anative site analysis.

Final.ly, in its cgn4usios^ t^'the alt^malivo s%be an.alysis on page 10 of 25, ia suWmft why the Pxoject is the oui-y actxptahio sitc, Apirlimt lisfs six Uujleted :c)a^a for ihe ideal burberaircial sita. The Ccirps :heed only campa7e that 1ist to thb Uullded comxa&^,W tl^ve7.opmcnt criteria,on Page 5 of 2S to sne that Applieant.-cleaffy has no .e.onsistent -set of c-r.itcria and hos simply molded the i^ifcria. to fit tluC isXoposed 5ite:

Pages LI-12 of 25 -- O..i Site ^inim.izaiiou d, iu. Applicant has iiedicated- that tke cost to provide un&rgruupd detentioa is cost prolu-bitivm-ar ► support of this statemient, Prov%des some vcsy lkuited cost rslalysis. Fia* APplicent rn.erktiotss e cos^k ^to provige ^.dergouni] detea^lion to sta^re 2,^ acrc feet of s^rm wat^ is app:FOximately^ th the cost- ta provide uncl=wound storage is ap-prox9malcly $1.05 million. Applicant suggests $6.00 lsar cubic foot (putj of stoxaAe *hi& is hi0eic ttran ouc erigine€rs ]^ave ckpexiestpe& i.i a. n=ber of projects. NvVertheless, assuming tlxe $6,00 pcf is coxxec4 Avplfcant haa failcd to s.ualyze tTae Dust diffxoace ftoxu an ahoveVound detention b-astn which typicalIy costs $1.75 pcf Applicant has appar€nfly. dp6ided 6hW tho aliv.vegrquTid ba,sm f*s iup valualsle rcn1 esktpe fhat_ could otbcrwisc be used for incrme{i huiiding sqWe fttage, thug incxeased iacounc, or ta

8 ^.

r^dnce v^{stland and âYn i^npact^. This ûrkh^ avoicl^ce of rvetl^d and^ siareanz. impaeG- aû1d greatl^r reduce t^ aast of mitigatign Mc^' A^plicav t°lyas sôvvn an priar' piai^s. '^'^nd um required tp meet a f:f..r r^lacem.ent raiio. St-reau^ ntritigatioa^, rnitigation is at a mîxr► '^' a. depending on t^.e type of pmposed îtiâtion, can at times bo Iiîtea to a]:t reâce^rnt ra, Cdsturnmy eshmated costs to rfiiti^.te stcear.n's appro^ma€eI^ ^2A^.04 pex £oat The ^^ ^'^ ntitigation avâ^s at Ieast $a©56^.0U lser -acz^. Using ;past. to ppraâse vit^md ^stimatedimpacts of 1.58 acres of wÎan^ls and I,49g Iirxdar t^ of s'^ ^pitct, for mitigatian is 1_58 x].5 xîl,qQa.i^d ^'ar a st^tEl of $77.,1Uli.p0 8nd strean.i ^mlaacts at I to .1 urould oast approximately $299,600:00 for a total af. $370,'700.00 plus lfie cost of pcxinitting eeir.dateci at $40,000.00 fgr a granii tnthl o£ $410,704•00_ lt is clear ftt sigpif.cant gavings can -be xealized by eiiminsting or at least reducing wetland md stEem impael % and thus moderaEing ft overa.Il added:ccasts of-mdeFgrnund stonn vrater stnrage: Furtlieymore, tka;,- is aLntential for *Wing undergmund stom water wlrile still us^g abavegcotmd me€hods for wati:r qua^.îty treatment, thus elanninating tlte need for an axpensirr.o mecllanical water

AppIi,oant also statrs that to develop undergrouiid da€eu.tion itanoeds to renove and #nack soil excavated on the Pra,jeck site at a-cost vf $ I2.40 per enbia yard. A ffioxe than xeasona•ble solftilatt wvuld lar, to pxovide ?. bat.anced site wlrich xrs.ost good ®ft.e Mg;nieeis achieue. crivea the topographic challenges of the site-znd the amouiit of rcwning wa11.s required, it v,rould be more rost effeCtivo to balance ffe site ^aa-.Possil,Iy rednce some tit; tlxe wall heiift, ttxus si^6utly reducing or e+ren c:liminatF.pg t1io soil reaavst cos9s.

;. . Simply stated, Applicaut has gxentXy.&- - ^qraf,ad the eost of avuoidgnce and ireduction of wetland and stream impacts. r nal paragralati an Page 12 of 25 adclresses tlis "One Bi.g Box Ran." Applic=t states that rihe tI tho "concept was eliminaRd eaaly ozx as hrokerage efforEs did xtot yield tenants -£ar Yie snaall sppacas" because "It]M IVib&ose area has a groponclera€tce ofxetailbilt, and ttiere m frw that are NOT in the marlet aEready °' Again, A-ppticaut makes an assezUon without -aAy suplsort. As-.a retail s3te owner and developer, it is Siffeult for *e nndersigned to beliave tbAt a dest.iaativn 'k^^tl-Mart Snp ezcenter could. n.Qt atfraet tllrec to four r^Xl.cr ^câ.il st4rc^ to lts site: î 4à^, i.t is this "follOW-on" zetaii that ficqu.eatly xesults in tito greatest prof-it for a devol.ope,r given the Itiw inargins in deals witlt Iaê users su^ as Lâ1^Îart. Bct'agr t^g alt^mative 7vay tie disuîsse, Applicant must provide exauples of the e£I'orts it uiacYertaok to market saeh acorLcQt, including wllat prospectivo tenants wcre apprrached, tbgir rosponse§ and tluu •biiqiiiess tcrivs of such discua;si^s.

^^M 14-15aU,5- ••4 es, for Applirmt states that tli:o initigatioit site-is a6ceptablc as it hWdts ft SUP of t?1l'o gnidqlix ► is a straight amitigabon watershed, ^ver^ ôugh it is 34 r^^ away- This distance of 34 miles linr cls.sta^n;a from the Pioje^ site. A rough ral^lation ^f^#l^ moro ap^^priaê "rlver îtes" slxows that it is tpproxi4at9lY. 77 miles, awoy.: Regai'dless of ttte dtstnce, nezther ffiigmitigatrun. sEto, nor tTis troe plautin?;- sncl liikiberl bank stahilization now proposr,4 in the-City o^1lôrta,n, rnpac6 that ^rill iîe^rltably uectur ta the protcpto1 Sîqesla Rvn, a ê^^s i.lre inc'dr-ect i S,p^ gi& (ûaiity Water n£ 0°hin, found i_mmediately d4vVnsimam o£tb.e•Projeet site. tho

-.2YFiF_

9 1'aaject wil1. cnnvert: 40 acres of-tsatprA11and intu Qm 37 a=s of i.mpomYeabIe roo"np, raads- aud parldng lots. The. weffiads foiyi)d' alofig tha streahis oft tbe Mject site -ire tbrrned: "low q..gity° by Applicant, as thcy am unergemt and not do not bav.c very diversc cvnnauni&s, gMng {bem a Lodv On.A3v1 soorD. HaQVCver, tbeir. location vsritliin the upper headwaters allows these wePlatu& to e6ectively act as efficieut filters fox the urb^ itifuil"£ fom_d ixmmc4Wy ap- grad'stnt of the Projeot sjtec Tf,-ApplicaRt's eorncluslon that the welaads um x,;Tmants of old Euctton- as effeet3vc floodplaitis, ponds that were bZ-e,wbed is correc:t, the wctlands may weLl despite tbe overaIl sito grado and would fÂq trest ft up-gr4in4 u.rtan xumoff. Pefoxe allowing Applimnt tô-ttixilran`ty cauclude #kat-ilxo water qua*. and oiJZer ecoicigi.cal values of the sh=m/wedand complex ara "low Oaliiy,;'• it waisld beltoovQ the Coips to require water quality testing of ihe .f1owFr ezitering -and exitin.g ft Proj,,-d sitc- to sees -if them %s, in fact, na s°O#'icant treatm.ent of starm -vrater flows as tbe^ water pa.ssc.s =tb;ough the Prdjea site and eventually dischatges -into tlie. ]i-igh q*t-y ^claaoog Riin down jlist dovwt=m. At a mimiinum, st2c3.x data wovld provido a ixencbinark forpost constrttction on site water quality fêatmc^t. Applicant notea that it pla.nO to instaa :aon-s€r4ietn-al SWs an tht; aite, such as plantin.g Vegcti^tii^n in. stoxns^vater b:asi^s nd rout,iBg strnmwatcr r^ztâ^ ^'om 1-77 thmngl^ the abov'egroupd systen. These Ideas ai-c iandabie, m would be the'rrr including groen rbofi, pumr,ab1o pavepaeAts and othcr grow ler,bnalow.ies such as bioswOes aO rain gard6s, but certainly Applicant woald Qot hava ffie Corps beiaeve that they are a satisftotory substituto for avozdance of :knpacts, wldch avoidan&, AppUcW has' Wt aieqna.tely Shoures. -is iropousiblb or ianpradtieable. Suc1t avoii7mce cquld be'accan3plis40 yn a mumbq ;of ways, iaclur3ing tlic mnUacti.on of Bpplicari' s Mnimal Degradation k'l=

PaRe16-17 af2^-etlan-d aud S#p,IMWN

ApgF'i^ stafes tliat avoidafnce af ^rotTnvrls ^d ^cesms is dlfflcu7t in its Prefervd and Minitmal I)egradation P1ans bûse af their location ^d, fo^r tbat rmon, 'avoidanca is not :prac#laable. This staime.ui coittains the ciâlat` logic and ^ of sUpgort as liaa bacn^c the t^^c of App&Ant's •^Lespwis+t. Undo' ffiis logiQ, any stfe 6at contains weYlmds and stecms cann.ot acbFev^ aôiâuc;e bcr,auâ t^c; îtc oontaius-wctla;ids -and sbre.arns that csnriot he s.•iolded. llv[^ is aply 1ê i^ 1) No altsâitya sites •aê availabl,e, 2) the gaêl site is so smali thaf avoidâca is inf'naible (and no Aactmt,parcels aro -availablc}; mu1.3) no on site altmud-ivas cAn bo don^ -tcg avoid w4-tlanclslstru^^. If fact, nane of tbcse tbrse rCtPixu--m.entn have bwn praveu. Xu any Qv,ent, thr, Miu.iuial Dqgadation Plag, by ^s very naiuxa, canloins ;edwed ixupaofs and Applicanf-s bald ass^:Wmtba.t "it only addresseg the isso fiam aYepatatozy- standpoinT s-t&miL't jofif^ its &-Missal; nia starinent is ime qn].y if Agp1tc=es assu'tions that the on4ite: wcdan.ds and str=ns .are viz#ually.-void of fUnctionality is acmTted at b= va-lft No snch evidcoico bf non f iuictianallty. has been larovided. Fvm If ft Coxps agrces t[iat tbe NiinamPi I]pgodation Plao is i^.ot pZ-acta.cable, as mentioned abovc, 1^,pglfcar^ lias not providtA $clequate= sYialysis, with supporting dasii, of why iho Medina County and Rogetnant ômmons altemaRae si^ are nat Jeadlile at^l^r âhy thp "O^ ^^g-Eox ?^1at^'° ^n ffic 1?£ro^^ ît^ ^s ât pxac^c ahl e.

10 4

pap 1$ o£25 --EcoT18miCS

Applzcant's anal,ysis of thc economic 'vnpact of 630 Pi",iwt rs summiary, t4) say .flte least. W' appeai-s that the sole imder*ning for its arFrnJNIt t-hat int7vin,g two stores lesS %an 1 mile agay et pasiiive impact to the xegio^n is a ► trom tlae City: of Fairla^ to Cop.Loy Z:a^5^P is a"r son, I said at statancat I made at the AMATS I-Icuing. To -clWfy-Applican.t's misrepiesenfat' AMATS Yleat-lhg t$#t "[Ae will replaice ilraft tena.n.ts:'1 Cabidy APOcaa does not intmtl to re1.y am this sta.wment aa 4bc sols jns-tiiica&ai fpr how.its "ro#ab3ng i'e#er to lray I'aul" is somehow a nojtnsitive ta ths region. obviOn5ly, oly five-vord fitateaumt at the AMATS meeting did not speW to all fla.e coml,xleaities and d"ifficulties of rc-#enanting space ffiis large, suCh as iaQw lang it vuulzf take ta find replacc,suent ta;imts, what ^3Tes. of#mants ihose would be, what sorts of deals wuuld liavo to be mad.e, ]aor^v !h6^c dOls *olAd im.pm-t the valo.e of Rosencitt Ccnnmons and how such rbange in -Valuc wowd Amot real proporty faxes anti payroll tues. Txonicallg, Apliai-ewA is quick to pciint out- on k'ao 12 of 25, a,s' nated above, how the at-ea has a -^Wndqance of retailM and th.qe are fqw that ar; NOT in the znarfct a'fready'.'° If iny s€atenaext thw we would replace Wa1:IVfarE and Sam's Club indicates a^,^letlu,laaf available ittailers; tfi.r-a where would those retailcrs come fiorri? Taken wkih Applicant's stafienicot ffid ther.e m few TetailM "Na'1' inthe maaket" fbrn cleaarly those roplaoemenns must cotnE flom. YeitZiin tlze raar]cet_ Simply moving retaiiers from ane itrmtim w another vvithin. the tnatw can. fig4ly be seen as n"Det positive impa.dt m the 1vgian,` e"cisli,y Ndmn consi.derlna but one of tine-nxany sodc} econcmic L'Wucs - irlle iui'rasiracturr, impr-OvCMMt9 that would ne,ed to Ue made in n -viffi 'sa-n-li nioves^ 1'i^ A.pplicint #rolposes hmi-, whiGh infiasb.-rzc[tue impzuvements comlectic = ftquentl.y► pai.cl for f-an1 the pnbIiG co#ffirs. Tn tlxis regard, .Appiz.mat ha+s stateci that it intends to -fund npproximately $1.2- rri,iElicrn in iniiastsu.eture- irriproV=ekts. However, tho AMATS report esiimates ll1e cost of 1wceE^5ajY il}xaSlcture i3nprnvemant5 is $6.75 m0o11. Assumfng t1at tlze vther $5.5 milliou 4vD1 come frora public fiandia& any staternent tha-ti tha move from- R(?senldnt CamEnoris to the Pra3..ect iy sc andliing' atlier tlian a net lass is abszrrd.

paMI=Water ualitv.

g,s 1- rEOted in pTevions co3mncnts, Appii.cant's flasiu prem.ise of iie low value aa.d nna- ^nd,io)laJiw of ft an-sift i^ajanas did sjseairi.s as 4itectly related ta'lhe wattir quality fanetuan of this stiea:ax vvctland curilplex has uo.huppo6ng ctr€piTical data. ThoQRAM mtl IUMY soores da nA attewpt to measi^rre these fnnc6a^s arid pkovide; 'no infuxtnation far surh an sqsessmcnt. C,liven #.lip inportance of tfris specific fLaiefiga (due to 41ie headwater loc.atEon to 9 cliacalog Run) and lacfore approving this applical.iQjt, Applicasjt=Shciuld be anatlc to snbstanfi.ate these claims by &rect =asur=cnt of watgK quality gaRliefiqxs, i^cluding but nat IimiW to turbidity and dissolved oxygem Applicant dismisses Nfi'. N6ff's ccrmznopts encl. a.d1ustments ta the conc* of a scoand altmatj.w, desip'as not a dosign, that wUi imlrrnve lhv oveza7l Vs.ter Tiality discharging off tlc site. -t insists that iU de.siV, with abad4ou14 stQrago and vu°ater quality fmtinent, will A.ppli.c.ar equal or ►imProve flic water qnality.codting the. sitc witlxout providin,g any data on the existin.g condilion..a. llefme tlds unsupporw -stement ia aIlowcxl ta st^nome hasfo data nimt be collected- and evaluated. F,ir-&attPre,Appk^t uses the 4}bio EPA gr*mGe of alsov'egrauncl

thg Corps' Wtew'if it des9re^, 1:4transcrlPt of the rrs2eting [s avallatifefor

11 .. . . - ^

storm water storage (or at xeast water qnalit.Y treftent) as flio :ovaridbng xaason to irapaA on site stresm.s and wetlands. A1thpugh it is txn^ tliat ^flie Qhia liPA prefers .4ovqrnand stoxu water facilities, " O]in El'.A dnes al,grovs underkpeonnd facilffies (e:g., Wal-Mart Supeccenter in Concord, Ohio) and is t5plc4y inoto coheeih6l with tho water 4uality r.omponeat (Phase 2) than wata vatwne storagc 0,sc 1). An pplxartnniitg for tneati.ng Fbase 1un.dergr=d and Phase 2 aborregromm.d- does exist oai the 1'inisct btite. RegardIess, wxaiding imp-act's•to xgolated streams &nci we#lauds shonld 6:veaide Xool pxe_fck^4^ ^?n st6r^ v^ak^ de^ign.

Fa ea 24 and ?5 o1=2 - Tr a-^"iG &Sa£el lacking as -:4ppi#Mt's selt` Applican#'s=•aiaiysas oY, trWtc issacs in AppFcarnt'-s Respanse •is as s^vif,^ traiiic anatyses to dat4. ]'h attem^rtin Io r^but tiiv conci•iisions rcachec^-1^^' A^vlA,T^, tho ^n MetropoIitaq. ,,xea `Fra^c- StUd.y, an tîased, nonpartisan gov=mea.tsl or^#€ou, that thc Project is unadvifsable aafd will have a negativa hm,pact oil the rdgiaa, Applicant raises sa= intqe.s#Dg and ipstructnye poh*. virst, 4plicant states that it "an4 Wa414 •havo identified a?ssrieo of upgrades that wV be xeq,cired to provide safe and efficicivt access tg and ft&i th%s d•evelopmmt" add tbnt 1.111 -iitxprove0ent9 wib Fie fui1y-fiuadud• 4y ilto applicant an4 thece will be ao out=of pocket experpAturs:iZy the tm-paycrs [sic] of g•unnnif: County or flw State of Obio." ilVluie t1gs souiids like a Ua.xgt3t-ling„ ]dudabte position by Applicaut, it is importat to noYe that fhe irpific sfvdy fhat Applinmi uiipa for Wa•lMart sz ►cl it#o detevniue the "serizs. of uparad-q" has.brcn iejeated by tlne Summit County Engiaeer- and bas been widcly disciedited by ^^naerfim other t.iaffic studies, incWing ttiatte of tbw Gìty-of Faitlawra and AN[ATO Nlobt importantly, i# one werG to acêpt the concinsiorks:oi• Aplilicant's firatrw stn4y (against. !he adt+ioc of eve'ry PaiMed• giofessional arevierving it), one receut critica tra.ffle dwelogmefit is tiot addresscil liy lbe study.aud wzll al^nost cata^nly ba,reâ.ix^d tp ê, studied I2yt^xc ^"umrriit ôu n.ty, %ginoet lu April, tbc City of Fairlawn, in order ta pmteot its neazby rmdenHal are.as; auth,6rized tlte closi^t6afRdtbrocVRoacl soutrti of tRe?xoje0t site *hich, ofRos^nont Batylevard cozpleted suroral montlis W. This wi31. deasticaliy change the ixaffio ^d* itL th6 -area. For Appl}cau- ta asseit t1mt it vsll -ttakc a]l aeeessary -iq13rovenij6n'ts to t>io r.andiiions: iniàstatclurc, it Jaust_flp t up4ate its ir4ffiic stud.v tv, t*@ into acconnt lh- c so new

piê^^ ^s a^gt^ above, evert v^tbout ânsid^#aon 6€#i^ afbrctyiensxoêd road C^bstsr^s, t^^'0 is a vqidP galrbet^reen tbe ^ 1.^ mi^fion #Ilat Aprlicant lwpuhrcally swed i.s tvhat it w Ispend an aies wiIl be xequired. Applicatat's ihpirovewents and the,$6.75 utilliqoi that AN1Pi.TO estimi lmnvage xegarding t3ae 1iiiiiteed amprovu[nsIIts Ihat it ai^d Wal-Mart b.aw idcutifiect md- itr, wwingness to pay,-#ur: mepa is sertainly no oaiacidcnee.

Appliât pvints crut tbat thc.AMATS rcport oonchdes. that no additi^nal tl^ro^^x-laaes ^rouldlae ieqiiized for Ra#]iTockRoad tb ac.calniaiadate the Froject. Wliat A:lsPli^t 1'aila to llimtionis tbat thiss :statement is based -ulxm constrmAon of the Wal-Mart Suparqenter an,d -Piam's Club stores only and does not znrludetheavailabieFropet€pto the Soutl►, sonxeâFmost) o£whichApFlicant coi^rvls " As ineiktitr4ed akove, it cgit*ly ii1tctds to &veloF; Addiiiopally., djfs condusiwc was reached before tbe road joiosures rofertmceci above, so the FzojDt-wiil have a.very different iiinpact v^ R(tlav^rcT^ Road oar^ fiiose c.losâroa are acô^nt^ £ar. ^sc^, A^plicagt says that Page _ ,.. ------...... ^ ^ ôrd S^Y the m^ny^Sr^r^cl^ ^ Ce0ftlin-' a^pesifiiin Efl z CopTes cif^tFêse and atlier studies arePart of ^cFie ub4ic rec rj^,qtdesY. tê €'rpjeii aiid can Fie supplê4 to t}►e Cnrps upon

12 ...r

25 of the A1^6{ATS report-statea that: 'traf^c will NFA^1,Y reach f.ho^ daily ea^eity of ^^ lane roacl., in ih& full buil€l-,oitt s6itbLdo (Wbi__lt eorsidj^xs the 23• aorcs tv the Soufh - zzot p^rt•of this app)icat[on - in tho, build-.out :soenWo) „ Applicaut -aonveniently Ats ,4MATV conclasion. Tlm verbaft secti€can fxoatt T'ago, 25 reh& "°As ctLn lae seem ftan.ffie abova analysis, ttaffia Will nmXy reach The maxiiuaiBrn dEfily QapadW for a twn lane Foad (14;000 - 15,00 vehkles per day) onany ^yen •we.ekrlay, and vitilli:ne-case•nearly 300°fo EdQlig portian.c-af RotbroelE)itoadl. OFt the stred WIA lixrovide a ffflM 1evel.--of -Rixvirit dt Its earx'ent evsdtli and eonfigauratiott (cmpbasis add.ed): ° It iH eleas that Aptrli,caut is w1Oti^ve in !te, re^icw of- the AMATS report and )m-ows that:tlie o"verwhcbning evicienw with iftpect tci- traffir, ia tlhat ffie Prnjec:t witll have a sigOlicaut, negat3.vc imlrwt aai the en*o road systernx. Perba.ps once Appll.c;mt incoaporates the- cfnsures of Rosemont Boulevaid• and Roffioek. Road Mo its tr^f'ic sturly, it v+nT reach avery differi^nt r,onclrisioa.

1?inally, Appiicant at'cemptE^, to conil.ate zoning viih tEaffic planning. Certal.niy qen busio, Wmrnon. gense mtders#a^cliug of thesc,issaes tnakes clear îat tê^r a^ zeâ^d, ]ût veay seliarate,. APplicant states that sigw the Project is c.trrently zoncA C-3 (canmeraial), -thc iinpacts related to traffic must have iwa owgidered ^t Y.ha tinic of zoning•ud- " "it is logically ini'entd by tbr- Community that traffiv lzas Veeki consiae„reA xelative fo deveIupTAenti of this pWGcL" First, Alsplicaut fails ta mention.tlie pending litigation with respect to the Projec# whir.h aliege% that the pr°posaci uses aro not puEniiUed in *e 03 6as.sificabio;ibux ae, ifiskead, pzoper in -areas zanexl C-4 (comm=iai) wJaere, axnzding to 9ec60n- 432-1 of ihc Capley 'pownship Znni.a-g ResoMox, activitics '"eneoui*e traffic coriges#iatz." -So, Applidant's base asstmiptio.n that beca.iasc fim P,-pject is' xQnW C-3, U neQessary tiafl=tò aonstclezafions have been taken infto acwunt is faulty given the plain iangaage of tbe. Zoning Resoiution. In any 6ven^, ovw if tlrb Froju-a were Inoperly zoI,ecl 04 to pemi%t the proposed us% Appliâa cmnot ask thc Corps and the "CommuniW' #o believe that sbnply bmuse a p3ec-, of properf.y is ^Daaed commereial; thc necessary itâstrac#û^ xriUSf already be in plaee If that we^6 the ca. it^^ gin-e -thc c6st in bWIding infimtruetnro to support fiatuxe cievrlopment on enry un>m.pravcd -picce of pmputy bcfoxe it is gNm connineroial zoning.

}g^^ ^q5 nC25 of&?r^^^^^^t^ DYEUCUbill t doubt rr6out tlm totsliiy of propelty- that AppLicanl As xaentio-ned ahawe, &= is: signiheer► andlc3r its afh.liat:es controL 'l'li-at totality ahan6ed from tb.e AppiiCa#ion'to A.ppucwvs ReslaD.Use. Further, thc totality may very vr.etl be'di ffeTcvt fxom that ieXeseohd in Apliiicaai#'s Cumurative Irupact Assessraent report dated -Januarg 25, 2011. It ccoainl.y dcacs not escape the Corps' notice that in Appticantss Reapfrose, it statea "the: paxal5 htlinediatily'soUfh of Lsiaj liroposed site aze not owned or c4ntxol.led by the Applicant (emphasis arldetl),..°" wiftut any xefi`=w to the parceZs aouth of ttiose. Uo*tver, oji Page 19 of 25, Applis:ant refereaccri 'twn parmla %mmediaWly south of tbis proposed dQveZopment (ToTad wA Brigglc)°' .and that it x.ow Las an "option to purr.liase a portion oftjZe 2-3 acres s mmth of tl+eTaraal ancl oriWe-pareel§ (e;n.phasla aclded):" Clearly, Ap,plitssit-has not ls-rr>vided a c3ear oAd eonsisWat v'i.e4vj.of vthat Jftlaerties it docs or does rlot control. As•Jis Ixas.czitzcatl- tsearigg on tlw on-sltc min.iamation and even t3ac ofl"sifr, alternatives, ffii^ CoLlss shdultl =cfL*o that Applis.ant disclose, on -ti7.e record who om its beltalf ]ia-s aantacted tlio pwngs or aggos. of all prrspqraes on P}ofto* gqad &auih o-f the

3 Alth4ugh, as mentinned a6 ove, further infvvsraattvn is req^iired €iefare the G4sps can reach the sa rs^e con^lu'sins.

B ftjeEt site, -when discussioAs ra1I(N^. ne9o1atioos dcciured, what paxceb am actually -bmd er 4^03.tx61, -aittl zf ^y discussions.vîib auire^k own+^'ai^ cuâtl^+b&g held xeîng the lsatc els sti'll not under option, 'The eircumslanws relatcd'to this, issv.e appear to suggcat 4hat thie may -bave becn a dela`berate' attcrnpt- M ciraumveut 1he subdivisfon roles regarding the ac[ua1 l.ends ,arâ^la13^ fo^'-^-e prc^jeef; i^. ax4kto

^^n]a€^v^^mTtaet Assesstu^^

Ge'ne^ai

Tfie purpose of a cuû3a^ve i^nparx anaiyais is to -dcterm-itte if inc^tol impaefs, w3m combinccl vrith tlta pxoposed Frojeet;, result in the Iâtuu#* for a. si,gmfics-at il}q)act to the Prtxject's waiaursMd. Appl[cant bas. seiecied Fhe LJppc;luserawas Riv€r tualershed as fhe mak study watershed, alffiough much informataon is presea•6ed for the larger ovezall Tftscarawas iZiver watershed. This appzaach inteniian.alEy ^p*^^ t^-impact of the Project.' A^plicant is well aware tha#^t^ firaer 4ne goes dnWastream; the less developed aud zural the arca becomes. Thus the larger tho wataThed scJlectarl for tTie base stady, the fcwer nveraU cWmulatiVeìmpacts. Appli.cant shauld bav: tairgeted the Pigeaa Rivor wateasbed, wifb& whirli the lschoealog Run 5s a flrst order stxeam. The icucn for this more seloctiive approaoh 18 bemuse the major cuzrntiative i.paO of ooncezn is to Schocato,g Rvn, wliich is ]istod- as a,Speciul .fTgFz .QtaOUty Water -eorttaized withan dte OAC 3745-1-03. This is .a stxeanr thak is au inkegral paxt of the CIty of Fgir1uws-Fort IsW Park, and sigmiEmnt resourecs have beeAspdait aii tUq stitam and lia^c. Sahacalog ltnn also feeds into Sohowlog lalie, with is an importmt fsiiery in sumoldt Co-auty ._•f^,s^,y-flv^wuc^.i^slisn^vvoriss.comllakeslabiols mmîtf z^westlsahocaô Yet desp9tc t}ii.s Creek's uisUrP.Mingly, Ap13licaa *y makes mejatfon of fhe Specisl Higlx Qua11}t.y *a.tez statis once in the zep4rt (page 19) ancl tlte presenoe of tha.hupQrtant Foxt Islansl. Purk and Schorhlog; Lake are ridver vd.esitioned_ 3'he sfr4âz^s €Q^rtd an the praposed ^'roject sit^ bafi3i fee€l' directly intcx SahocdogRint. Furffier%oir, Applicant nnisea5es the rmits of the Ohio frTCM and ORAM studies ko hnply that thc Priolect's st

i?age 7 a^6 3.1.2 Appiic.ant is appfiirently s°CiII utitiz:ing aA outdated F-iNlsit dep3Gtiiig{all of fhe s#rearns as cphcmeral, rattzer tflaa all but one sraall sG9meHt b,eing' con-eotiy iupeittified as intecmittent. Wetlands are sti11 sb.own as al,l lseing'Clat-c,gory I. FZn#]xeimore, the report calls but tlte E^`bit as E^lubit 2, vvb.e^ it should r^fereucc B^,ibit 3. I^fitigatioz^ is called for at a locfltinn kha'c ^iil riot inavc any valu©: far- Schooalog Run or 5chocalog Lskc, even tliough tbose waten are of high

3-4 ^-^-•.

valua-andwi1119e d'ue^impasted:by=t6ePmject: ji.fad tbemain MRIPtion-Acaa. appears ta be cro'v+ fli^s." over 77 `5river mdes" ^r^r^^ ^^^i€: ^q^ o^^^'a^y `^^he

ps es L- 0 ot26

3.13 Applicant sta#es =th&t the s4r-fim -water x=ourcm arg: -af Iow-clualily, ad haw been "Nstorically dbariiGd;' F*theknior,^, tb:e stateixtint i.s niade tbatIdD inaqm,iz^.vdtebia^ oz =p^b;aw w= idenaed, wain tln: st-[eam cl>mnels. As thc wetland weas are clesxly {1d6d.plain, :twtrg*t wcklands, it xs ciif-6.cutt to iielieve that irto arapbibiians inhabit this eiareamfivetland- complex. In fapt, aq-note.d aliove, thosc AoodNâin wftjan.tls -ara 1li.e i'irst Iine of treabnwt for water quality as ruaoff comes off the urban laudsea.pe -upsteeam of.#he site, bc£om tlle watt:irs t-kA to frclrEidalvg Run, Sozne aicrmtive degiga shnnld be rcgâkeii that minimizes impaots to•ihis ripatisnsystenm and•impxoves #te water: qu-aty c:oMling off tbe, sitc. 'rhis-is tho last Iatp opan, undevelctped ares, npsfream = of Sdircalog Rtm, oantgr,s a funtIonal snd iin^sorlan-^ ra.iiaiian s^ream. an.d v,re^.lartd coniplox, an^ [^qs^zv'es prait^ctiosl. Ap,^li*6 s#atemmt that ihis wA resultiu a"met-positive con,savation mpaat to ft studgwatersbeci" is self serviztg and clefies iogic by tgnoring #^6 1otd#tal iinpacts tv the -6xtly oztcc-iftienfloned, SÊciiad .Hxgh jitst dow.nstiicam, and fl3e GoIISpl,*ly uadisclosed: SÛocalag I-41w..and j?ailtiavun.'s Qa.cality Water Fott ând k'aa^. ent (iz4up, 3,2- 'I7re Cf4 contains:znultigle refcnmees t+o eItajDevelopi ► Inc.'s Economic Impaot Asso;smen% clateci June 10, 2010 (ft "De3ta ROPOr0. A.$ a preliThInary &atter, tb:e olnser-staflons wniainpd in-the Deltza Retaort am made in ono of the IUatoli.c 10w poin.ts in "the troaunecl the plnese "RaistMt" econovo.y It marks the^ seventh-recossion sineo 1969and has zeh► to aqscxibe &c re&n in ivlizcla V40awn and.' Copley §irE. These eco4000 &&Uges 33avp 6gn abrupt and havc sfgmflc.antty an•d o.ogff#i.vely cmpaeW the area and axo also- El• loiiger t=n &ga-tivc re9et tQ tlie xogibnal snd nati.onal eooaomy. TJw cbts^ges in ewmniic w6ILhft are exise.eted to be long lastigg, especiallY With -raptiat to 1l.te manuf'aoturing basa ur-itlcal to 1N•oxthemt Ohio, immpaeftg flta- dispogable itLednie af the families•tha.t sre-scr-v%ced by retai.l•ers- snelx as îâ111(lar€ and" Sams C^. Any ^n.ention of incs^sses ove^ muaheû ^neastu^ in tiîs listorically recr^sive pel7Qdm^bn-talcen with a-gain of'salt: Zt is uearly bu.gossibl.u to xnegurc Ioiig-f,ciin eifet:ts cif any developmci)it until fl,a affceted sectorc.bf L^he• ecoiauiny reeOzr. ttw11 be- several years -6efoio tlxs Mtiolxss frnw miIlion surplus unemplaycd pwple -find gainfLd ax(p1oyment, ths honsing aisis abates (i.e, tl-ie- d•rop in ii,a= val.ues i-a ar.rested so titat a gtable morE^ge market rau be âlizcd) ^d tlia n.ai3on, a^ rities lt^sp Fairlavv^. aod Copley cs^ begin ^ rc:build tlte tex and social sevfces aspeccfo :of their budgets. Notably, Applieant makes no nientic)n of the physlcaj and woiromicwaste created'by abaudunhg'the presezzt Wal Mtrt add $apn°s- [%I^b sWres a4d poten.4ially erippl.in.g Ros=on.i: CCkmmaz)s, tl=ebyalso affectxng the.- weHbeing'of the ot}€cr rrtailxs ioos.tedWiUn it and; ai'Fhe-bof#m of tbe tafx food a3iairfi; the City: of rai-rlawn arid i% residenfa. No sonsibLc Ioss• aswssm^ 'has beesl compl,eteE1 sbowiAg. Mis liisk)Iically pMven. effeet, a glaring avu,ission in the CIA and tlic Delta Report.

The• Ddta. Rtptut, and thus the. CIA whici4, aelies ztponit, is soFely 4elting. in several crif+.cal Yesliects. Ffi-st, wh= is the impact"astsossjnaflt for -thc entiFety of tlic ce. gi®nal ecorlomic aeid social euviz4nrr^enff WhilG t'he D*a Reptxt and AiSpJicant M qigr,k to pp^fft nut c,afiaiu eco^^c antities' ^^s, tbey co^vre^entlyftj1 to m.^^txon• ^h^c Iossw°sre suff^r-ed by tlxo othm

Is axe,what hns prven t4 be iTi the pagt, and is ilow foremst tn lxe in the fu3ure, a vexy stat•ze ragion 'd^ngg^hicall^r. 1^s it in, aily se]f-Sîn^statistics for job êa#ib^1, îtlic^r direcr or îdi^^; and tax zevenues aie presentea. Forqnstance, a11 the Tahles on pages 3- 12 otYthe Detta 1Leport are tnisging one eiiticml cotnpoTfent: Ncrne p€dsents what exists at 'tle pze%eat loca.tion aad wli.at $he mctg5iiuk ar lqgs Vi11 -ê for tlke regien. In 1o"g nnty 4t the: gai.n fpr tb,e regiom, A,pplicw is asking ttle-^C'^^nrps to aj1ow-it to rely on cmly one-half of the necessaxy aaalysis. Of cpursc, when. Applieant slrnlsly lQOlCS-at whixt b crcated, at ft krroj.cct aw ignores Wlaat is lost xt 49s^xtont C-ommans:and ia om City c^f Fairlawn,, the tirt=:loaks.rosy, imkdwd. The Corps should require .Applloant -to provide the "otlter azde of t1e coin=' and show tho wrtaitt wgative impacts assoe;iq(ed viitit tlte delrarture of Wal-Mart and 5axzt's Club fiorg'RQSepont Gommms and iii.e Gity ofP'a:ir1avm.

In, additians t1lme is no aidempt to rna1.e note of the oomparailve distributed beneiits on a- gex peXs€tn or per household az pex =e b$sis, irypical data in complete caanaInia impact assosMents. F niFiej; Applicant ipozes ke pub'^c in.frasfructire- 'tyuden ^x.c., road ^io-^pzav^ents. a^^ expansion -of police and f4r, prntwtion) that vfll be necessitated by tho Project°s a-dendaxtt caugestion and- ovmlaad of the tatislmrtation and safdy -j^s rn ttia arei, as wall- as 91e r>fi,go3egeence that will be,;ma€ed af R.ooAw)it Cornnionp.

The wlfiaRcpgr#..and, thtis thp CTA, camgTK4 44s: to h11y sddTeas these issaes. Applicant neos to provids all the necessaryda#a and analysca laet'ore a dedsion is made so that tliey can be Wted and that rcdsmable an.d-rstivnal ilecisio*s cmft be n^ade.

4plicsnt is cagcr to goint out in- Section 3.2.2 -the- gain in reai estate taaes ca-rsed. •by the Paoleet 4 How_yer, :^ i.s widely-adWWjedgad" #hat -Wal-Mart is ana of thc >rriost aggresasve ccnpoxations in Ainerfca in sgst=a.tic€rgy. seeJdng real. estate tax Mdvations thrangh valnainon dt.al}ca.ges 1-! 2007 zepoz-t €stitnatect ffiat Wal-Mart &iased af,proximate3y $43,000 per store per chzUngo-ixit tke Uiuted 5tates^ There£are, i£#hj-, past is any indicator, one can ext3eet a decline in flirgrojeewd real esfiatc taxes ;oing fo^xwar(l.

3.3.1 Applicant stEttes that it w11I. wnrk tift the mtnicipality':g design team to ewure tTuat any: aestlrefic i4acts are addregacd. Applicant-£ails to note that time will lie mi^imal ra,^pact8 ^ Lopley 7'ow.r,ship, as r 77 r,4uwIefely isolat,es. the I'rajecC from • all noR-can7a=cW lsortiorw rff thc Town,.sldp. Notably, the City of Vaarls.u+n., whoso resirlwltts wAl be pliniaxily arid scvetely impacted, hashadnQ iupi4 i^ tlieWojeft's designWhai3oevtWti.

LqXgi 11,and 12 of 26

3.41 Applicatt -states that the w-etlands "wete'evaluated to be of low €laality (Categasy 1)y'. This s4atUNat is not entirely Gomct. The Ohi.o EPA ennsiderff at Zeast one of the vretlandg, the

, Apsllcaist Ign4Tes the decrease In rea[ esiate taxes resuitirtgfrori ► the decrease in the uaiue of Hosemant . Apair► Commons when it loses i8s two targest tenants. fifaf-MaTt 5hort-aartges 5chools and-ether-PUbgc-Senices by 5`rRaflfng [3aciz ProputyTax Payrnents: How ► CFsalrenging Its PropertyTaxAssessmants,L Phifip Matterfl etaf., Cood ]obs First, 0Mber2(*7. hit • ur oad"absfirsta sites defa¢it fles oes t11F ^valmarfi^ct^tax.pc^,

16 , ;. _ ; ^=._-- .

• :e largest entsite, to be. Category 2. -Havvever, {)RAM cioes not Ynesswe specil'ic•=v^retland^ fianwoiis, ucid thc extent of the abiltt.y o£ thc on-site we$au4 ta ^x4^^.e w^ci f^^p-Efôns iY na"t e^nplcicully ^.easûred, so using tl^cse cate•garics ta state tlât t^^y have41ttlt,Or sio- fuicfima vabae is tinsnpportM a-nd -antvan ranted.

3.4.2 Appiicant oontinues to-maintain that due to fact that satno of the wetlwicls resulted ia om a #yroboh af o$d ponds, -aaid that the one of the wntla-fitis lios on a 3.5°fo sIoA-tbey axc fitnodoning.•as a: mad stcragp sysLyan anii am thpieTore of litFle. Que. On Ole CQ-ntrauyi these ripadan vaf laauds may 1}e perfbming at a very higli fnndionality far fiifraitah o£ urbm sbm-W polluikls, f^4pergiip attmugtion, oxygen rm-cbaxge wtd even flooa atfie»iaUon. IU wido extmt of tl€n -goodplaiu, even in a• fw- axeas, pzovidos• areas whcre sgctx fanctions tnay be acc:uring,•. Applicant sho-Lild not be gEVcn the benefxt'di the doubt on tbss iasize, b'at sh4isld bo r^red Ao -Ppno4t mosti-hg wpoand and stream fwRonality-, as the IOss.of sach Rmciions could remilt in -slgnificaA ixnpacis - tn Schvcalog Run and Schacalog Lalce' (and its ampoztant fishlerY^.

P es 14 anc115 of 26

3:7. I. T`bere i.s •anothff ooncera with dovvrm strewn erosion and• bank -dstmiora.iim and that the Pro ect fgnF ha've foiffiirr impact.s on Schn4alog ^n. A.^pîc^-t ha.S proNsed stonn at wiff decrease the peak flovvs from flte.l?zojeot a$rm dlevdoped.: Ekmrc ver, 4fier mai3agmeait t'i:► cmstnretlon thae will cleariy be m.oro runo-l:f as a re.s«it o-Fthe'ir[perv%nus nataie of-tTne groje.ct. uqtfa7.l WilT be kept at a close to censistent $ow dug (P tliv: €ropos^r3 detmtion systpm, but the stremn lwffi .see a_lughar overall quautity+' of wate£. Schacalog Rm will ha.ve.longer hi&- vkt* flbws cfiie tts tho ei{endcd perioii of stqr^ +3iscâ^gc ôz4 upstê^ ^^rtii^tt ^st^ns increased- bank msion. ansl• incre;M the pxrt+ep#i.at .fQr steeaux bank dovasx which vvitl lead. ir► cutting. 'I^^s Xc^ger a$i^^ ^ns with h3gli.er watc3: thc, zifom prone th"e strcam is to ems,ioii aW the Sclvocalog lako, a very impeitimt ffsh downstream siltation_ Selioealog Run alsq floves into and vuildli& habitat. Schomlog Lake will be, subject to inaxease in erosion sedbnWtatUi adveatply 0fi4ihg its ednsyst;m.' iLud

subskituting'th(i fiabia.ded strekM and wetiffids with stohh ^va ^po^^^ ^ s ^ ^77^3^ staâ.g tTiat.t.he this i's an â.pxovênt vvcr the e^Si^ s3's^, ^ p^ st,roam wmld be of higher quality tlaaa tbose'cumitly- on^s^ is inieTesfmg -as a stateiuent, but- does nat inake tlic liicstrrun c qual orbdfe'r ftnnxaay pf the 6^4tifig streeam mrlies. Without ;a€l.diti«ng infomatinn on ilic capabllity iDf the exi.sfiirng s[reams-. and u+ettand.s to -keat wata.: qtialit;3', tba-c are iia lteuclumarks to evahaate prQosed iffioaots or the sucms foic propoiied. X111tfga^la3]- •

Pae 19t 426

3.13.4 Given the fact tlxat tho Fzi^ect is dircetly rapstftn Qf sohacalog Rq, ewry effarg shoritd be xnacle to pxnwf di[s stream. pn•-site mitigadlon- s1Z-ould iaalude, at:A H"Mram, c:onsada-abl^ areas of pemzeable pavement; rain aaxciop.s, bio-swaales and btAlding.9 with grfft Foofs. Far bdW v,+04d be the avoicla.noe of impacts, ;so rrhk tho rnain stCeaan caR p.aP^ tliowh apd ^:. improved frorn afun.ctfonal pzrspectsvc, voith increased adjacmt fioodplaln-Avetlands. ^_.•-

17 s . .

5.1•3.5 ATplicstit -i.iTially nofies that SC&cata9 ltunt n*-bb inapkated, but no =*a data to suppmt that posi4ioar, that tlxs water -cluatitY Of'#h* streaan passing thiough the s.ita "dae.s noi appear tobe W lt i.s etiticd that dataixa taect€.d tn co¢f1In this-aSSexAi6tl, lrefc^re ,a de^siog is missie oa elinwing or not. a11QVîng iiâpacts to tbese wateF0. Tho iioSativ,e re.sults .af a mistdke in this critical ini'amation could have.siglifficant i.mpacts to SchacalagRUD. Apliliosnt has ntyt addtessed tite ignlsacis to ScliocalOg Arm that are ^dsed by th^►rt loads fem #^ retail devcl.4pmpr►ts. '^ls Project, if pexoOM^ a^ pMpDsed, V,iill cun81sl of 38 acM of i1e,elopcd prop^-xty with impi=eabla aspbaltps.vement.and Iargc xvoftops, whiGh will imease iba water te,oipFeatrire of the xiuzoff amd negatively iinpuct ifie aIxeady delicate coaspstem of the wam vsratex sixeam- lncadasea k the stie.am tenpmtUns ,will resu.lt ia adecre= of di.ssdlved axygm wlilcli-wil.l havo me ktdyerse aifect on the life zn ffie SchocaJog Rut. and Sch6c.îog lsakc^ ith ApQlxaant's Respoiisp aud the CIA aborFq, them is a Ah sd foA izz tlr;e afialysis- of b ► sigufficant. shortf'ail in the infarma#ion fli.at Applicsant has :psovidcd relative to the in6mation tltat A-ppllicant i.n.vsk px©vide. tipplir;mt's Respbnse and'th.e CLl, 1ilce tlo Appi%atiof bîire ihen1, ^r^ based on m'i'ssing ii:fo^natio^?, partâi. ^formation arcc^ masinform^prt. Be&nre the Corps even con,sadem the AppXiaa-tioa for tlug ill-advised dov4apmuen.f, it rntrst reqpize tbmt Applzcifit tirovicle all. zieces^ iftfari^ wlcdtfier addcc'ssed in this letW, o`tli* comm,-Ifts or otherpvise. Absent sucli infozmatiog, #he Applicsti(ml shvuldb^ demied.

I C U ntinue to vy'rkomp the rappoxtptity to disct3ss *e Ap&catiDA- aud m3y mncm-is m more detaiL As an intemtcd parly, I fomali.y request wr3tbm noti.cc of aiLy a.ction talcen with respeat to the AprplicaL-i,on kcltuling oWq.g of.*,xyic;sVo^as by Applicaut fir, thl,^ or" adi.y a^er OT§r*nee_

SiSac^eI3^ ^Oii'rs;

Herbert New=an Paibia, Xose*ant Comnrons Dclawam, LLC

CIc: Copip-y Tawmiliip, O]aio `ils.e M df Fa+.xls.wln, Obio Sumrn.it Cqunty 1'lannin.g Coinmission S=mit CotmiyEagine.ez ATS

,..

i8 Exhibit 24 i:

:^erbe]'p j^EWlftRr^ 73(1 We.fif M+alietSfPeet flkrari, j01r;a 44303 rx^. My 26,2011

VIEt ^CSIMIGE 330-786-2232 AND^ Cr1;D^RAL ^'RESS

NIr. Pntbcny M. Utanlcsr Distict 417eputy Direatnr Qhic, LvePaxtneiitòf TrensPottatiOn 20$ $ 5outh Arlington Roari Akron, dhia 44306 ^ro asc$ ôûrêrcial Ilc^relopr^neLtt az^ Rot^k Rca.d, Copley Tpwnaisip, Qhio R.e: p

Dear Mr.1-lrax*sr: State

I am ataartner in fbur reta+.i dcvelopanenis in tlle M^cal} s yNWtcM^ ^ lpTa, Shops ^ Itûte 18 Alrcl cIeveland-Massitlan Road, sp^ com^rising o^=er nne m'llian sûare 1'ûrlawn, OfficeruKx Plaza and Rosetnorlt Comm.aRS, d feet of eommetcial spacc. f]ur centers lra^âv 4^^ ^^r ^ grsing suex^kc^ I ame regi.an for 20 years and we canfamre to nt y rawing cancern the proXstêd suxe ^ can undetst.2^xd, I flaye n+dnitoted vîth g concern lies . -a coniirsercial developrâ-ent an Rothlocl^ ^s o rm^^ ^ll ^^ ^^gnd atheT irt>;asEruC#arrE ceotr^Lly ti^th the de^relopEr°s v^m^villingn p t ra er and im^^nents neeessary to ruitit,ê ali impaa i^^ its ^ ^ oêr aadecÂ a eîl4ty ^^ ^1 in tha Qêa v^riil ► f^l.our mitigation,t-mants' custouiers the tni.^c tosyste aacess their stores will be greaiiy dilnin-isW, resulting in sigîfirnnt decrease in kbe velye of aur Ro^^ Roadt^cs #he^ ^lcXchang^ of 77 with of provide_ Gid^n ^»erely ttru prnxirni the butl^ SR 19 on the Noith md CleveY^nd- Messillan Road oo e ôr'th, the Oê€t ID^par^m1t of Tra^lspa^tian ^QI)^'p'l must consider carefuliy the F^ p develcrproent and its poteatial impacts on 1-77.

I tuzdexstand ihat tirere was 8, fneeting in Aprx1. 2011 at D37OT's Distt'ict 4 ofFices armsng QDOT, the Sunul^zt CountY 1345neer end l&yor Roth asrom the City of Fairl'awn and tlxat discussiorl invol,ved the PTOpascd deve1€irIDent, its the patcn^ l^ ^^hîtjl^tl^c Ir and the develop^'s ^plênt interest ^ reRligning s}^starF Road interciange- As this mos#ification Nyovld 6e wi{hin #lta ► on. 7'71Cleva#mid4-DOT limitod Massiiloraccess right► of Way, I understand that Et formal Interclsayige Ivfndyficat ► Study ("NS"? vaoreld 6e myujYed. We have engaged = txaffic en&cers^ V-dlis + Associafies,lmc. (--We11s"), to ad-vise us of a letter from Wells ê verY imPaâr^t issues• I enclosa a capy ^t1Y^gaedin.g Tespect the Aprillmeeting,tv ^► +he 1mPosed modifxcatioas to the I -77fClevelantl Massilian Road i.nterchange end thc inlpacts of the, dryvelopment on the 1771SR 19 irl eha^ a Given this snd aD O'^s cicar inteie5t irA a^1d ;iurisdiction over tlzese 1n$ttea s, I ur e y require that (a) a stt^dy be Perforrsred setting fottl^ the impacts of t1le pzaposed deveiopmcnt on the intercha»ges of 177 r^rit^ SR O^Tl s iirnited d^ ess lTighR of way. to the eatcrit that any rnitigatiorr ts reqair ^'o^rned wsth zcspect to anY i1145s be zequired, and {bl at a mirks^nujn, that an IMS be e gven if an 1MS cannot moclit'tcaticm of tlte I 771Cleuelatu]-3^d1$ssillon ât^ 4un e ianportance tliat (]DO'F becolne be requircd gt eitizt- intercl€ange, it is of p ^ this developmierrt to actively involved in ^► ^^tTcara p opcly m£t gated. ûnnunclini, eaisure that ail effacts upon As tlueh,^^ m th^y will 1 trust that you ara as conoerraed as I asn alôât ha^re on the raadway ^Ystem in geaetai an3 on t}i ^^ ^^Pel ^^ an& developm^t veniencc to disc+rss fuztkec the wi3ling fo nieet with you at your earliest aoi► and ddr gravc cortceras.

Slncerely yours,

Her6eTt Ncwman, Pzincipal . i West Market Pl.na S1lops ofFairlawn afficem.ar, Plaza Roseznont Commons

l;nelosnre

cc: Mr. A.lan Brubaker,P.B., P.S. Exhibit 25 SUMMIT MANACF1!(1ENT SEWiCESr INC. ; ;; ,r ^2y !_.-i t -c (,IKAi`f Real Esfafe Management 730 West Market Street ^ ^ ^^^ ~ ^ ^^! ^ ^ ^ Akran. ahlo 443W-1070 Ielce^^¢^2 33(317fi2-4011 IUD80 f.

Jant►ary 28, ?4I Q

Russell Pry Sulnrnit County Executive 175 S. Maiit St., 8s' Floor Akronq Ohio 443080

Re: West Market Plaza Lianited Partnership v. Cuuny, Ei1gineer Action

Dear Mr. Pry:

T write in response to tlae t•ev^nt developments in the actian filed by West Market Placa Lintiteci 1:.'artrterslup rtnd Montrose Retail Associates Limited PAtlnerslup against tlte SuMrttit County f^7gvaeer and the Sutnuut CouEity Planning Conll-oission. As you know, tbe parties entezeci into aiid execut.ed a Settlement Agreemeail stt this case in. mid--December 2009. SuUseclueirily, a group of entities tltat own property oii Rotluryok Road moved to ititeruene in the case; as a result, ,t;-1 the court°s sppx¢val of the part#es' Agreeinent has been delayed w1ii1E the court cansitlers the ntation to iiitervene:. At oui' realuest, our attai-neys filed an opposition to thc recluest to interueije, but it is xny 'Utzdcrstanding that tlae County Eqjtleea ancl the Plaiining Commission ]iave no ittteiitiorn of opposing tlte request to itttervene,

We = extt-einely concerlted ihat the Cotttity t?ngineet' atid The Planzling Cukz7ziiission appear willing to sit back and do nothirig to protect the parties' Agreemerzt. 'fhe parties speat months negotiating in good faith ovet• cotmtless discitssions to hanu-ner out an W eemertt thatresolved all of the,parties' coneerns._ Morc iniportajttly, the Motioit to ffiteiuene challenaes the autltnxity of tlie Engitleer and tlie planning Conalnission to enter into thc Agreement. Sui-ely the position nf The Engineei, and Planning Commission is not iliat tltey arc unsure about or did not have the aitllority to entcl into the ,Ageemettt. We axe, therefore, pur.cled why the County has tltus far done nothing to help repel the attack oii this Agrees-rtsnt fronx the proposed iittertrenors. lUs ittaccuracy slzould be eurrected an the record. We intetkd to da so at tha hearing and trust that the Cotuity Defendattts will do likewise, give.n tlxeir contiiaued assertion over months of negotiations, and their specific rep3resenttttioit in The AgrecnYent, that-they had tite authority to ncgotiate and entex inta the Agruemetkt attd our reliance 4n iite stmie. Aside fi•oni the obvious iiability isstres, . ^. to take any other position would set a dangez4us lu^ecedent for County officials. We trttst we cait count on your sttpport wtth mpect to'tltis issue and ask that you coiifixtn such to us.

in the 1r

If you have any questions, please do iu

^•

^ +-.! _COPY.

S[)MAr1ff MANIAGM-N! SW1fdGES, W. ReEI Wafe !/ffinaL=fikent

7311 ►Idasl Mod:at 5heet AknxF. dhbAM-1p70 _ MEcopler330/1t+2-2D24 i 33E3l762-4011 TDD: l-8DO-515-1833 Fxt 962 1 1^-3> 5anuary?8, zQ1 0

^ • ^^hl: c^s^^tt _ , - ^ ^-^- SunvniECnuntylept. otDcvelop1=t Plaarung 1Jtvision 17^ S. ]vlain St^Roo►n 207 rnI ^}y^1 Ahon,t)N 44309 L s^••^^: ;?^ el Ix2n?a.I itîte^l Par[nershsu v_ Connt Pnîners êtio^ ^ ^ V,êsr ^^p i_C6

L]ear3Vift'.1C^stati^etas: t^ ^^

I writn in responsz to the rGr.ent developments in the aetiors filed by West Market P1eza 1:,i3n^ed Partner&lhip ;n^tl t►+iantrnse Retail AssociO=s l.iniitcd PaltnerAip agailist tbr- Svntistait Caunty Enginec:r and the Summit County Plafuiiag tYoE^3rnission. hs yaii koowy :be parliies erite.red ii-ttv a4d qtea:nlvi n Seiile[tzetit Agreement in this cFSe iU -rnid ]Der.ember 2009- Sabsequcntly, a : 3tothrork Road moved to i7rt^i-vene in tlle esse; as iLt•mtlt, group 4fentities lbai own propn'ty a► the cntTt's approval of the parlles' Agreei-aent bas bcen dclayrl whiie the eotaLt r.onsides's the rnoiian to hafervette. Ax oo,- reqisest, ou attaineys rrfed pst oppflsitiort tp'Ihe reqtuest to in;ervero, but it is rn3y tutderstarrdsng tliat the County i

We sXe =[ren7ely eoncerned thai ihe Couii[y Engisieer and the Planning Cormmissioix appmr wnllittg to sit haek and do notlzing lo prfltcct Zhe pa3ties' Agreeineni. The panias spenk ntoqihs negoiiaiitrg in gaoll fsith nver t:owIrless discvssiaxis to hanrors out a3i noreenyerillhat resolvcxl all of tlie parties' concerns. More i3n,portottEy, the Motion to ltitex uene cballenges thr authority of- tl-m l''atgineer luxd tite Plenning Cott7rnission To enter itiEo t3ie Agreement. Surely tlx: posltion of t1ye Ettgineer'zuA PlaErirzing Comrnisslon is rtcit tlta[ they sre unsure zbout or did ttoi have the authority xo entcrinto the Agi•eeinenL 1?1e pre,'tb,ere.fore•, pmzled why Rlic Gotrnty 'has ilyus fiar 'done nor.h3ng io helg repel tl•ie aitaek on this AgrzernE)rt iionr the ptoposed inEerve6o3's. This inr^+^^y sito^l^ be cqrrecied on tl3e reaord. We inicnd u3 do so at the hev'iitg aud trust that tlae CountyDefendants will do liktwise, given theisco}itinned mertIoli Dvermonths ofnegatialituss, aiid iheir ,speLific represmttutian in the A-reement, ihat they Iibd Ibc autliority to negotiate and cutcr into the Agreemem aiid aul' r'elisutcc on the sanze. Aside froit3 the nbv;ous linblltty issUews, to talce any otlrer position v,+autd set a daueerous pz'reedent for Covniy tlfficials, We trnst vu can eaunt orx )fotsr supporl with respect to ihis issuc and ask that yon {ani=z sicE tQ us. „`. Zilt)"iCrnec'i1rLln7e•} ilza Agge£127ent bas been CxeEikleCl by all {7ft}7e l7&7t7i:S, is e11f6YCeabIG by its ovfn ^^. d Planning Conifflission's eor35ideraaon of tenns, and niusE go.ide, the Cuunty iJnDineex's ffi- ► dtvelopnrent prolrnsals svithin Montinse: ^OPY

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if yoti have any qaestions,plmse do na] hesiraw to contacL 11».

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Sun3niit C ouniy l'luuidg (:cini3)i;h:;ebn (411 Meirrbexs) 175!q. 3ylain ^t,, Rqbin 2E77 Alavn. 011-44308

Man 13m1*a^.'tr, 3iirntnit C6nitty, Eitl,pwk!e 538 F. .aoutTi Straet Akran, Ull 44311-1843

Re: ê C4û3^^'s t Ii ^^àa3a Y^s 4Jvre,ea j1i^ Prmiosed Deêirâiêatt c^.. atlu-a?^Roa^

It Ilas vâe !u m^r atie^^tiv^; tlint.a massi^ d^^îo^^^t3t pr4âaa> {ili^ -1^posal^, I^^s laeen subraitte^ fr^r agi3iup oi dr:vslogeitis, ib+;lecitnk 7..ItC ]Ttvett ►prnent Cotn'pmny, tv Cap.1&jr Iawnship17iat is clearly s?iNbot ro aplirovat bytho-f;oujaty, li^Yeêr, It ia tny tYntlîshaitîng tLSSI lhe Cout^ty $lanniff^ G'olnu3issir^rt 3âs niDl yet asserkcd its appvvtâl autftorliy oVdr tho Prqposa3. PaIt,r lyrRillg iU' re7ltind yi1.ki df t!]l -^',O►jnjY'a ohllgations i;n dis repxd {nid lo d-aaxsd,ti]Pt gxe [°du^L^ renui^ t!^ deYÎUpt^s ni lhse lar^^â1e Prapcs8110 9eek fltG Ct=t,N -VPinvt[I,

A€lz^^lnp^naitt of ibN snzt ;lizd ih tliis aFea kjllst il7e i}litn- of devel"ol7matzt foy whir.}3 Qwily ieai^t^si^wg keqEtiledalld-ek[TEcted. As !'tn S11rC S^OSaZL Avam, 6e TTqnSA setl:S fQ p011glrR4 two Rla&8i4e stC3Ye9 D?7 RatluaclC Ridtl in CopIey Townsliili, TJye dtwc3ogamt aif4 is in the area cnie3rswnly ic7fericd •to ;ts hrlotztrq;,t-; whii:h is a cWIfaeal arelt f6r t.ha C'oinfy, 14;:o&13sG alrvaiiy caltaifis nur„eraus shopping eeaters, Wg-Wx re3Ffii4.,-rs, $1naller aE7i1 iWil-SifB? c6lririfer4181 stGl°as, Aiovie ttI£RteiB, r_eslanrn1115, t;cWetY kcnnA " - statiohs, at;d iuany 4otl-cr mils1aTcW. establishunents. It smveS avita1 rolz in ^Itr C:au ►iti="s ecanqn* aild maQy rmit?enis of tir. Countv sliop in and lxavel l,o ai7througlr Clie nrea nn a dRily hn?is. 4'f4upiy-leadershits it; req,uirccluot didYlya=st: Ea£t1w cniinitei'eial.s^^lyllteanc^ of the ai•en (one fox alreacfy a r,laaileiigiZ); but alsc► bccause the Mowrase arrra iw*.orates tlta boua{laries af lwa ruYrzisl,i^s a-id nna iuunicitallty. Bath `roWi5sAp, Cnpley 'I'uwtasltip: aad tIia City pf FAirlav:n $Il• csaria' togeiliZr iil: the; isdontroffie area-, wh;cli kave4 me focaI a[ivernawni hi ct.aftifll r5f onef sillo; ij ' f tlla sirs:et, nlid Arlntirra' iiE cdnuiii it'f the ottiar airle r.;nd uo 6fif,^ 1063ciu7 qtit for iltrz Ued interests (rP all resiclenti. Tl1g igptiz-ay, thexafoxe. k besi irosldkm^d io ibid mtEst-talcp, €]t_e leald ii, etasui3ng illat'thw area as a^'l:ol.e kq cool%&aisd aud up-crair.d in g-nu4tied amrieraitd.in theinterest otal(CouillyreSidmW.

►NMMRA 0398 CLx94 atsPrtitai itf tbb 1'Jxypusal.3S, indead. tepii-,-4 by tlte SmA.llait C'aulzty QtdixUi*ra. Ai't 'Majtlr ^L3iJditlSionli' pki'}}ioced SLY )I1C bUili iii llle L1Ail:txirposated it:tlii[it`v- ot the CLx;•rty, ;uelz As C.bPky T64tiI1S'(lip^ am suGjeGt tor ile caiinty"s ap(;Jti.-,,ref. .S'vr [3> ditJaltces, ^ 1 IIlI.K cf rsuy, 'I`lxe DLdirialucra9 cEefilte a^1,Ud^'îSi$R^ as `'Ctjha jilllllxiventeltt Of ORe OL 17)c3Ce P=els Cf 1sclld f#1: 601]xJxie!Ciai: xttuctulzs ar glx?Uits oFKhw-turis iltvoMrkl; the-di4isim ol' alio&ataasl pfiaitc€ ('rn-tbe opcJlilsgr wi.4eniltg, crt a^ tensinlt of ariy sfreet Lyi• sti•eets .. a:'f 1 107,43(17)(13 }, 711s geeti.oll pi'ovidcti. as a sGcond detitiitWn t^^'^lîlj^ SStJlte "the d%visiun or aliiiettiicli) of la^ld as open spaors-far ctvmbdrl•u„e by ul9ners, ticc:upOaM or le;tse 11oW1; or a5 eiisemeuis r'trrt tlie,cXtP*si.Pn: aud maiixtenartce tif' pohUc wafet; swtkn t[raiuaue" ctr atitee pukitjo Wities:' T1to Prrl}losel nleets -t acIY atlci e-very oim. ai` th^ ^r^leii^. 77i& #'rpprxsp] j[rd[catrs iho- vFide}li],4?, am f ' filnjequatoz pt` go.tluvek IXpnd,. Zu1i(oh slfoisld ti4rb13 gilrtlrisiilg givali tlie fact xltat it is eut=tfy -onty t*'o liinea tlri4 ooukl. 1tGi1 no85(itly beaJ- the ificreuselt traft3e dwElaikd tliat will t&ult' fipui mt 300.101W squara fttd ti€ ftvl' i•et{Lik Wg box dzt'elopm,°.ilff iilclutln lt iilIi*e. Proposal. FurEbor, Lhc: PlaPOai irldicates si^nifiestlt:^pait sps,c= for wmindn sigd by tlte hro r-,iTii bui{d;•'itgs 4 Yer-]I _ s3'â^î srÊ Exfu>siliu ofa^ler sttlrtu ^^=ater, draaixape ^nd'4tlierliubl^G faclliti^S^ ^1^x1^ ^'^cslitEes sviil rellilirc thu o•aaltirito of L xselnei^t ri;,lffs to t]ir, util4ties. 'Plte PmposEit's tt"d to ,aideai Rctlitoe3c.Ttvasl an" 73ec1tdteulBlit -fdY ihe- aliocatulp af lalxd ati n pti3ity or thairlaj;e cWsneitf 3I l;a esta(rlis}L lhat lile PYoKdai coils€itudeS a"M6^drgllb[tl4isiiJti" lllaf trigces5 t[lt assdciated-teqiiirznlents for G'c?;wily-ak5pruLa[_ S¢c § 1t+rle0, tJle u'idenint; of Rothroclc Road, aloiie, i-equirl

ra tLe ext^nt rm^,oni cottld ev-cn saf;gl:,4 OW ntYjt e^llccê3lity eAists es tcrwlsetlter r.htr 1PO}0s0 qua1ffim as .a `subtlifcsiN1,'' tfie [Jrdiltasiccs E;lso pawide- that itie 5ulxîYisiorl [t%IulafiMs "stLa11 f-, 17rmft ecuzsti;lerri arld il7tek'}>f'cted a1 as to atrhie r tlleie ess-imatial pul`pwe." Q1101 i6_ Tl+.c. Caultty'I .:ewiltial, ptu'Pope" bn i^gltl^r^^73''S.1111iîV151K1135" IrS set fiirft i#1,thu Ord111SnCCh` iCYid Clei3rlv1u113f4]rCG^ flLe rbde OfThe CÙtli]t3r 4n flt?p]-tiV iilg tl3is 'ftippsp l,

~~^13^5 ^r^`17^15'7S1611^R4lsR60pnS c'ire. a&pffid to sCClli^ End pi'OVid13 fctr .S,mAuit^vstulytlz^t'o3la^ing-o^ij^cti.cs, LiQc^diuJ=~~

~~Lx^) The Itrrckpcr ai-ia.ogentent of stramts or highvvay.s n.t nelativn tn eiciAEiriE Ur piDj90sc:d si;eets and hig,ltways p17d tit^ iltcunt^a'hFaFa p18ri. -~~

~~N Meqllate antd convenee>Zt a^el} ^paees for .Eraffiji`., tail[stiGS; acca^s for sl!e IIf)wtim,Q apPtlrattis; rerutior, liRht and air-, arid tlidavaidaltez 6£ L:arrgesian of illa PupLdafian_~~

~~(c:) Tle oZdMy, e9icic'rtt, and ipprogdqe dev4[ipi211t of lsad.~~

~~(d) '1:he mdst]v 4aLld 8fft1q-}14 L17Ci5IiSi0rl of WilMrttluity fRciliIiCR at lYli[1[fnII13i tR7§t a13o 137aYi1llllln COn}Y'd'L1L'k7m~~

~~(c) $afe, and ec5ziveluent 4ehiCular.m}d }}eclirSfriEU1 in4itnlneric.~~

~~WMMRA 0399 !ft 1"!d prtlmot:on of public lleaisi-4 ssfotyz cajansz, cvnsertic:nct!, prpsprify{ aEicit pllerxL wefi'sM, and tl^e PTl7tei.iiott tlftl10 e71VlrOi?7nClit.~~

91101.02. Ftch-oCt[lxeae exptl^ ^nals fmiise Couttitys` s¢it;tsigilt of"^[(xttk7siui14' is ►:1tarl;} idSt3}lcntdd b)^-{itp sT~Wtifottit ili?liact.ot iF1e Ph'ol;osal. oil #Iie Culuity gel3erslJy and ua1 lk wtclt^s^ lf^tlt cx^„ Msi.^ents, gnd busiiie:C, OvPixrs %iticciific211y..

'i [lt- reqEiit-e3tte'n( fur ille C ounW's aPprOraE Oi' ilre Irtuti!isa] î^C^'ts ttl^ t^quilt t?ttaiL^ t'ca^ aêejfr^ tratiia ilnfs^rt s1u^^! 1^3 ^re s117xiniitetf ii? ^nMa4ecti;oa îtll Corrî4 epiuYûa1, E,âêre[I^ Sptîn', qI[ s^^stliv►siott` lunptri;nls tt4)ItiPt a traffie i►llpact siri+.iy ii3 atiy reeal•d.' But as you Icr7I)W, t#te CiltInly Ei'^guleel" and 6a 1'1a2t1ilm, CV.Mitis.ItsA MA ilis; Couwy Exettttlte 0c6114ctN-E1y, t11B "CL111nt]t PaMe!ej ag-reed i11 ft Set$icnx4it A3t•eea•retit (tftd, '-5it#i^}tl^l}L Agn"ment"] wiill• lWst ÎarfCet Z.irn,itkd Pa:lttersliip antl Mrlita:rnsa 12ttbii• fi,5st1vi4tas I.iralfeW Fl2k-ttlersit€p ^GOllectErelr, tilz "14gnntrfisg PJait1tlf'1s") IhHx: dfflveInpmeut-prolicisa#.s ,oE n ctmitt s&' vrirh'in I4foatly)5e. YrimatitHd. a iXe{iic Iuspa0 study of'Certaiv. Itat aztlr,terfi- 'Iht SeltlBtnent Agjveutcaqt iai &meral and tlle s[tEdV 1}mAniK^s spetaiicafly weIr tlle sllitxCl of signifit_psti and ?ortgmxafi:g golYd-faltls ueZatigtiamt tTfat- uIfs11utt'cli^ resultud ;u tlte enfosOcable' êrIkjensebt AgM-etnei3t. 711rt3pg suel] negotiali4lUS, tho-a?cect se:dlxl:iu pre-tegcd 3ay Ilte lli-ol;omf ►vtES •t3te tupe tli d4`vclopicnt t^sE d7e- represtntatit es of th^: C'.mtty- Exigixtmr., Planeiug Canlenissi&L at1d .Exee:tlilt'eugrrxtd. watTanfs tîe- ii'aflic stu'dy rGqititd by tlte &Lt#leipent Agrtsetnmt. &tnely, tl.fier usiq 0.^72îtii nt a} In tlan t^ eîty ^^^ (t bWdy fUr iiti$ t!csot- sdwraXiV w a t>Cl;tcp 1lie: Ma2likrse PlAintiffs into sewIl ua fheie Iawsuit, tfie Couttty F$rtia s Wll ilot abrupllycilalrgetheit nlsiids stld meLt bif tkis Itti 1c+nAer requitw Con€itv atypt-p4-a1. Tfberzfota,- ihe ?7autlt}' ZiIl&cck; iit cdmeotioix witit Ilis leolly:. tna-ndafrd apPrpva1 oi' •i}ie Pztipti"sal of lknltbxiek &o:td, iiiutt r:equi.iv tlic stddy C4tit^.'jp1;lateCl by tl,'lc Settlei11im1t Agee6i11eRt: to CiiStlt C lbat tfie Eillllfl6t [f iht Prt)pow c7C :ixly fltllw 5HC4 ciewJo#tireai' is c,alatdated, nci.ttyhigazed:

The onitr way tn- servG llhe' bitot,-m (af all COtulty reSiciiûis, inLludiuK I^^^n^,irqt C Fesidents, patrîs, atld b3lSine5S ii4S^1ie1's. 1S to aRgel't. (",tlur7t}y a11r^1CFYit^/ RVet= 1^3'L inpSt $ig[3Mcatlt di'ftIbp71]f'±7}t ta nCm iIl th8, Mortttxsbt Aiw& fnr Ilie: past sev-drel yem - tis t^- Cauniy. is ex-pljc;lll..y tttI,lii-Md to do 4iy - i7s o" t]tdlriûues. i respecifRlly^ r^r sallatî t11^t ihc Colnl[y rûsstr tha dr?elGpar,s kyht} hatiro -au[it7ilued txte remyli Prt►pdaa] to seek app tqvMli of #i1e Pk?nlst►ssl as a"tiubc€iviqic3e xnd 16 adAetz to 16-tra•sn t aTtlit'ts(eli=t:A$tvelueut.

~~Sin^erely, ^~~

~~71^'~~

~~1^4'4^4^1•t 1^E4[R122;1,,^J<#El^i(!^• Wt'sf Market Mxgr Limited Parmerslno anil Wontrtss:s-I{etail .Asfiaait3tes t,itnited 11srIilFa'sllip-~~

~~^c: AllStlniulit 41^c3ttikty t;7aat1t4E11YIt miierg ltusasDEl Prnj, Sunimb Collt}ty IrrixitEive W iliia111 Y. Rot1i; Jr., Mayol, City al l;ttida .w3~~

~~VIIMMRA 0400 SU%IT MAhlFiGEtviEN SERVtCES,fr[C.~~

~~^ •ti -Bea FSt^fe Nkmagemer^f - ► Noventbei 3, 2010~~

~~VIA FE, AF^3tAL laXP1GtE5S ... -„'• Alm1 Brubaker, StEminit Couttily Engineer ,r, 538 E. South Strect Akron, ahict 443 k 1-1843~~

~~Summit County Plaiinifig CoknnYEssloa 175 S. Main St., Room 207 ft[u-on, Ohio 4430$~~

~~The County of Summit, ph io Russell M. Fry, Executive Ohio Euilding, $61 €=4oor 175 S. Main St. Akron, Ohia 44308-1314~~

fie: Sctt[ernent hgreeutent (the °`13geement") by and,antono West Market Plaza Limited Paifinership nm[ Montrose Retail Assnciates Limited NrInership (coElectively, ti3e °`Mqntrose Par6es") and The Summit County Enoineei; Ttie Susnrnit County Plannirig Commission and The Counly of Sunvnit, Ohio (collectively, the "County Parties") and the proposed develop[nent by [,RC Deve[api-nent Company, LLC and its $ffiliatos on fiotl7raek Road, Copley 3'ownship, Ohio (the RProjecf'),

~~Dear Ladies msd Gentlemen:~~

We Are in receipt of a"Tra€fic [mpact 5t►idy for Rotltrocl; Retail CcnEer" prepared by URS, dated 5eptembcG; 2010 4vith cespest to the Project (dtc "URS Study")• We understand thpt the URS Study lta,s bc:en provided to tlte Sunitnii Cotinty Dtigineer uid assuiiie that copies have lil*ewise bee3i provided tb all County Parties. As you are aulare, the Montrose Parties and Couiity Paatiss am subject to the terms and couditions of tlte Agrecment, which requires that a'I'raiiic brtpact Study (as defned in the Ageeenicnt) be perfnrined if Summii County ltas}urisdiction aiul certain cri:tcria set forth in Section Fotir of t[re Agi-eemeut are rnet. "flie issrte of SuEninit Cvunt3+'s jurisdiction has heen addressed in orn• June 17. 2010 letter, as well as in thm tetter froin t[7e Summit Cottnty Engiiiear dated Septeniber 12, 2010. Given the en#'orceahility of the Agreenieut and tiie ciear jzrrisdiction of Sumfnit Cauiriy (as oonflrsned by one of the Couttty Parties), if tlte criteria of Section F4ur of tite Agree3neiri aar, met, than the Aglreenteiit requixes tha deveivper to perforin and subrnit a Traffic lmpact Study, coinplying with the tenns of Seeiati 6 of the Agreei-nent. Enetosetf please find a Met-ftorandum prepared by Wells : Associates, Inc., a national trafFie consultwit dated as of October 29, 2010 (#1ic "Wells Settlement Agreement "}, analyzinQ-lhe Project, t[re URS Study and the txrms aiid cniiditions of Sectiona 4 and 6 Mernc► of 1l7c. A,grecnlent . Yeu wlil see fhat the Wells Setrlement Agreemw7t Memo makes clear iu Paragmphs 3 and 2 that t3ie criteria ofSection 4 o#•the Agreement are met. Futllier, the reniainder oFthe Wells Settlement AgrumentlV[emo idcnti#ie5 the nu:merous ways thattlie URS Study doc,sti 730 West Market S[reel' Akron, Ohio &4303-1070 330-7624011 Tol[ Fcee 877-3[]6-0219 FaX330-762-2024 www.Surr!nfOManagL-rneniLiving.com ilovember 3, 3010 Page 2 -

^iot comply with Section 6 of the Agreeruent. As such, the Monirose t atties Llereby demand that tlta County Parties cainply witli the terins and conditivns of the Settlement Agreemnt and require that aitller a new Traffic Tmpact Study be. perfomied pursuant to the Agreement or tLZat thc URS Study be revised and strpplententcd so as to comply with the Agreemeat. Fai[ur to do so will constitute a defartll under ille $ettle.ntent ftigeement, eutitling die Morttrosa Parties tnzder Section Three thereof to exct•cise all rights and rerrtedies available at ]avr andlor in equity.

Setting assde tlie fa'slure of the URS 5tudy io comply with the Asreement, it is, on its face, fund$tttentally flawed. Euclosed is a second Merrtoratrdum prepared by Wells + Associates, dated October 22, 2010 (the "Wells URS Memo"), which addresses these futidaat3ental flaws. Most it-nporfantly, as noted the•eirL the URS Sttedy does. not aaatyze the traffic evnditinns resultitig from tiie ctasure nf t3.utt,rnck{ :Etaarl and il`vsetnant Boulevard by tlte City of Fairlawn. As yatt t-aay be aivare, legisladon was iritsodu€.ed by itio Fairlakvn City Councii on Itiovernber 1, 2010 authorizina these closuras. As sueii, ilie URS Shtdy and, indeed, any traffi q stxtdy, inust niialyze this very real scenario. We understancl that by letter dated Ocfoher 15, 2lf i0, tlye City of l{airlawrt fvrwarded to dhe County comments of its tsaffic engincer, MS Consuitants, Tnc. to the Uliis Study, sotne of wlviclt are likewise addressed in tlte Wells URS Menxa and some of which are not. 'L'he Couitty Parties, in particalar tiie Couatty Engineer, in fullilling their respensibiliiies to the County nayd its rt:.sidenis, must require that the 11RS- Stttdy Lzc revised atid supplemented to addrtiss the co»cerns raised by the Wel:.ls URS Mema and tEie City of l;airla ►an su that they can Ful ly analyxe and address dze impact of tlya Project.

~~I laok, foi•►vard to the appUt-wnity to discuss at your convenience tl}e Agreernerkt and the nancosnpliartce of dle URS Study tltereVUatli, as well as ehe URS Study's fundanie.nial tlaws-~~

~~5inc rs~~

~~llierbert3^ewman, Principal West BdarketP[az.a Uriited Parfnarship andMontrose Retaif Associates Lii*nited Partnership~~

~~[^nclcsures~~

~~cc: Matt 5pringer, Zoning l.nspector, Copley Township William J. Rotli, Jr., Mayor, City of Pairlavun .~~

~~Mara€^.l^i, ^01.1~~

~~Waut FkRba.kett, $,,iYAwfcGoLjtiy ftinW(eisv vhi eArae11. hait uutn €„^, u^^ut 5^813: So-►tt'h ^^$t Abun, Olfsk 44311480~~

~~Swsixnif Gflun#jrP,i=ulag {;ommixsia^ 175 S.-Maiit St,,R0Q>si 201 Akrpi4 (Wa +1430$~~

~~^ô-ôunty of h^tit, E?hF^ 1^zssÎf.M.1'^y, i^xeaud^re flfilo-tturtî€t^^, ^^mldor 1.7^ ^. Nfai^ 8t, ,AYaou, -OIua+13Q611I4~~

Rn; SAen10t AgMrnmt {Ehe. "AgiWIn005 by md anang W.cst WkeC 1'laza T.imitcd 1'o-etugr8hi^ ttitd Âo^li^sv Rrtît 11ssr^fs►ê^t ^"Izidit^'2actêrshiî {ca1lecîve^F,- #Iâ °^+âutzo^ PntOw') aucl•TM ktnrrA 1^6tuity RY^glaw, Tk&uni"m't (bmty PfAin€ng Cangnleslon nd Tfla cqluicy'af Sumslkil; ©h9o (calleiftfy, tw "Co.unfy Aidies°) andfliaprpgosed drw?o}meo-t by LRt:` Mrtâ,topiaiit Cwmpmyi LLC vad fis otWiatea on RoElmk Ruad, CapIay `1'OWOh#lij t;iluq

~~Tfear Ulim anci Cicntimant~~

4.s ybu ft=w, me coxporafiWprewd u`°Raffic Iuapaot 5'to-dy tor Iuhmols I€otaii centeT" datod ft. knAw 2010 ûî rt^s^4e#t t8 tlie 1;'rqtset Qtia LAS s€uv"% -xite uz*13;igti^d, by la[ter tx ihrr Ooo-nty Wva-detad Nrnmrnbe}e 3, 2bia (th.o "Ncivemho-r lAttar'l• sae'ArtFI why t1xo (buuty PpeEl'o had juais&liqn :ciw tim 1'rojm#, why the Aarcamnt a,pp3i.ed tu tlia Wc#eot aiid flic x,taay Au(fs of ffia UR4 Wcly. Adclltlouo-lb^ lh(p G`ftX 01'nltfal'en (".Valrfai+rn") ajfd thG Akinr! Mi;wpoliins# Arae. Tzoffla $iady (IA4iAT5") subutifEpd to #he, bluanttft Caufity tfueir own dafaited aon^nsr^ls to the il'O Steu^y. ^}r 1Q[tcr da€ad ^^^ t^, 2â^, ^►^ llôr t¢twai+tirx# to ^pfey Um°natiip 1rGuplwy") l^ e01nrhents to 1010 îtt5 8t►uiy-, 3v,htali tciter,qwj*alljr 1uaaParhj0-*e co,narncw of#fao- [vlan6msa Wies as wat ae t#a uoFnrnrAits fttt ^g.Wavrn,AMA'1*S aud uth= Wa aev Mw ia =Ipt dT3RS's I+atxrituy 16, 20I1 wVanse! #b the lih&et►es dmftTw 13,1010 Iaitar (ihv "EJRfi'kcisp7pt►se"). WhAr ft J^pntâss^Mas_xecIiYed, sc^ttd-(iand, #ha tfRS. Rvqqqatsu o* ow weekrxgo (a1nt0vt2 tveCt

Ynu W4ll i+poOl thd iha Navoniber 3^' TCGlcx pan#" n nfamrMAduM frm Wclts •t• i45sflo4nfw, lita. ("Wal€a') sfa#ed Qotqljor 2^, 2010 sa{tlrig fgA #tie.gaiftisQ yarl€e spuail"io o0.0111tonls ta t3xa 1,RS ftdj6 I'hat nioehoiuduat is,lnavrp=tcd)i&ft%iji. 1^$^a liss iiw ravlowed ft tU Rtspnnsa ard has pcovibd•-a new Remosnndunr; rfnW 1^,afk.11, 201i, scding Rrxtlr spwMe- rvspr,ws ajid- cornrnots td the UR5 itespnus-a (lllq "Walle 1vlanch 1`I Mommndulal.. pimo aaasldertlxs aama, keddilton to all eommioW&pravioUs[yj)roifdal,-to be liitj affWu1 kppatso- aFtlto Itirfoutroso-Pa€tes, o wa1f aa u rcaatvod fornseE. de,mtnd tEfnt•i the Coardy.r.arEies. cnznply vNi% 11fo tema md. *Witionc ad'the geNrlmant Agieaufimik wcI zrxln$a ihs€cit#lcr amow Traffiu Tmpitct ftc1X Ero pwl'!medpitreumxt to flta Agiaammi-or that tha 1U

y::,-- WMMRA 0389 Study. ne tho sime jmay !4 MAO in aanmafon. with ft U^0 Re'qOpse or of1:rr*,sc, b& ^.^^sr^t^ttd svp^lembnt^d â as tv cwmp^► tiu^ thaAg^rêf^côt^ IFîtuxa t^ ^^ c^ti^ co^s4i^tfa^ tiafmtfE undak tbc ;§efftamW AWXEncmt; nz:t{tliog Me Mavftse• ftfiloe -ttnder Set.^ti[+ri -aeto ttêû#'tu ^+arotîs^w^! ^^t^g tm^^rtcdtes aîlal^^t reutr undlor3n c^g,uity.

Apir^ sct#^ eaido tiie îA^ ^'ttie i3R3'Stud^C,aESSi thC UitS ^tespês (tb tifa a^tCnt titet.ft saûo ^pvaro (o rr^cdilii9's S^tgntt^ to rd}lsottu^'E3^,.^ Rtiuly3tt nacoFdi^c^ daratvah) tQ ci+mply tV1t1t: tfio AgreooLlAt they oonttiiuo bs bo ftdwontstEy. t;ewed. 't:6e Weflp. Matdh 11- Mdntarat,ftu addra,sse;g thoa8 fmidementO Baws. Moat 3uiposttultly, o incAw dlerain, ike:m 91-udy doC$ btot annbt_n tho frAffte OAdliipas restdHug. *aoa #kc etmYa qfRottizvck lCdAtt eW Tmear4ut $oulei+rtkd Iay lt;a City af Ro7rlawA nnd the 'ta^S Mesptoisd ]nakes cdffr#b4t, deerita gw Bngiaeer's Aw*abar 13, 2010 letfior add ttie imffitWly a.t E4anmsnfs front athms ta tho aamd ef4t, #1m-^g kftudy Wili•mot study i1e ni*gs of #hq-clo§tiro otRafbravk Raftd.. lis yviv hmv, 14slaifom ia pmtictMg t+rit]t VMdawu Ci#y fiou©od 4uth4rldng ulottue,af4offiro* XtoId. A., 4uofE; tho Uli,$ 96dy and, fidmj, srLy ha€ffe sttidy," mtEst- onetyae thtb vq;y-xrnt sccnt^Ytd. '^â G'q^.ju#y î^s,.in ptîicwt^ 11^p Co^n€y }^ng^ca , i^ fi^f€'i€lf^^ t^r^rresî^Qaiîii^ to the CpUWY W fts sW&nfs, mttst reTiist !hal; it:gsr&ass• of the pafifcuiaas ofr tho D'liS Raspmft, ^q CJ1Z^ $Wy lsn-rc*ed od supplaucbfcl to sddies tirn.comoW rofseA by the Mobtrosa Pxtio^, Felift-wn, AM47M and'ntheu aa that such pmdrg cfntfWly enakyxa iLnd addcm the impact ;of t1iopwfnct

~~I loolc fcztvard t4 Vc ¢^v6ctumty to discusa 4le nnnrîmp#^,^c^ lii•t]i^ ^^S Mudy aud YIU lltespmvzvith•tha, ta^reet^ta^ ^Ye^1 es tke finxctattEe^tî fiî^s îeîiF^ 3ii^^ ynUrs,~~

~~^C4x^191#IdOWt^ti, ^F^t1Cjljxu^ t^ est Mrkot P2.92A I,,fiwtedporutorsdup imii MmCroso RctaU Aosooktw S^`l^i3t^7Fr^lt^h^s~~

~~^A4^(^5i3Pe8~~

~~W. 10 atsMdlR.0, 5'lturud t Coi wf,yW&cera W6 et (via em ei$ dk0mtnMiEe ir &tgtf Sprljlfierf 7.*rig Tnsts'sotpr, t3uplnyTmvmhlp Wtib6tu 7. iioxh, Sr., Mnymrp City vt• r, atrlawir~~

~~iNMMRA 0390 Apt•fE -2Ur 2011~~

~~VrAME, PAL~~

~~Aloi1 WAAW, aSilli1q13it'. CULifO'ft11t£DY OE40141PrOWf: Allrlk^}tlkGl^sltBirn€t^^11^3P f4^t^ 538131 Spath 8lract Akcm, plfia4431 1-1 W~~

$Uiinnllt C%!lnty P1mninl; ClxuimiolQu 175B, Ma€n 8tu Roprn 2Q7 APa'ar, Q1►ici 4430ff. 'Ftsc Crunty aP13u;n^?ft4 t^hi^ ^s^l-Tu^.l'ry, I^c^cutlve C}hiu llufli#^ ^f 4 Pioor 179,^. Maisk St. Akrai3, Dhio 94308-1314

Ro; &tdtsmo^t Agre.emettt fitlla "^mqnt"y by aaad pnong West MMlact; l+i= l,imi,ted Yartt3arsltfg aftd Maanfsaw Rctaik ASCac1att+S 11mited P'&OBorskig (eo3€cctively, ttia-xMMtro26 Nrltea") aW3'Fto SnMmiB ^vw^€y l?îE^drf'a îd ûmtaiit 00iInty PlDbuing Cotnnliss€nar vdTGo sas°j Gfl^1 t€te proÔaal ddvaC^ment by îlu]€y pt' Stttl3t►►^t, Uhid (+:+yllevti^Xul^, îp "Calmiy^'ai#` L1i,C° Aevelopment Cbtnpaay, ^ mii its afiliaiea ou '1#atllrflak RoA Gaple^ Turvnshflr, of31a & 01'4cot"y.

~~,i^Gnt•1^tdfes a^sd-t3c^ltlc^ao^t~~

As ytiu ki3„rnvr Ul€.S C*oUti4>F• CUM pmPstoI-a"1"raftio TmpAot B+td.y= fof Rothroclc ltctail Celttce' d" Salitmber, 2010 wltlr-mpoet to thaTr*et; (#ha_ "t1^8 Stnd^,s). T1â unrlersiped, by lttter to kho E1oû^tyPartte^ da^tef Kov^3nh:ea^ 3^ 2tllo îfie';N6srgmltw3t f. vfer'^, tct #nrtf^ w1^ tF^c âunty 3'ar11^ Iiad Jtsrisdi^t^p^ o^r t^ 1'avj^C^, tiyhY 11z^^gê^te^tt ^r^ ^ tRo Pro,jol and tlse- inopy faulfi <)f ib:e tJY•S Mdy. Addttiwallp, thd City of Tairlawa ("Rirlava!lly tmd the Akron lvfetropogtarr Areu Ttafflv 'dhcdy ('iA.MA1'6") gu1«nd€tecl to tb.e: &+,imwt r3wlty gAiwor (tkc "%ftginae) t1* owlitlmolisd owmGnta #o,titu 1w ftdy: .ay iattar datcd l3anerritler 13: 20.10, tlno 13galmer fomsrc3ecl tci Gnplwy Tawvsfrs ("{opte,yo) ComPleutB ta tho. URS 5tucty (aalfertiy^ly, thr3 "Infiial #3!!&€near bomftntt;"}, •whc1t hi#ial 11rj&wr Comavat; spaolffoaRy tilcorlidratod•Wo aqmuvaits oig t1* Mortimso P-:sês as wa€1 aa ttla clnrnui^3f^s.f[^n'3•1îrlG^ri, AÎft'1'^ unc^ alhdi^. ilit^ res^v^cd €p ît€all^^âr-C^îaiel3ls by fcttQr dated Tebrua'Y ifi,:201I ltia imders^podd, by fettek t&tw Maroh 14, 2091, pxovt,dcd 1tis canitneMts #a t6a I713S t3espcmeo (t1ia "Mnlit ►9se .PaltfxO Amponst,*'), 1naliidin^. a M^!lrora^tclum t^dni We]fs i- Astaaalato, bw. ("1ôIb") ^lAtexL ivltyreh 11, 2&11 (tht; "1Yeifl 1^Sai^t 11 Moia'raadum"). Phrsa€Iy* ua Umrft 7%.2011,1hix Englnoer gcut TIRS 1ts r.oramea^ts ^p tltu U.ti^ l^^csponxa (1fxa.f`^n^fr^borts 5ecunJ ii^spoays^"^.

We#Iq 11as rasrleweti fh'¢ ft it!$vr'a Smamd 3tespnea aA ha provadod a natiY .lv€emasanshun, &W ApAl 24, 2.41. 1j scttizl^g tUM km.tfis rmo.tzses and oQrmeuts titeNc^ a oapy aP wiitctr Is. englwdd #iwtvith (t13o'"5^f^ 20, MemwndariO. Plcaga catlsidae tho bkuiv ,tnd tbialett4.i4 ed€t€due to a11 cuwrmta pr4*us3y pmu#ded, to fatb* Adtui cospoListi vi t€l6 kilottfrpc 1'aQifea, p WeiZ es g WjWvr;lt hts"^ ^ftid tbat.f1le trQtAtYi.''nstfW OnVtywttti €to tcrtas nd eomi%i^ 6f thc gciamcut[ Agne4mmt and ^oq*a that ciffior a aov TraM ° t<]CiilSf'i'

WMMRA^392 Tis^pîct SEtrdy ^G p.ttt^lxnedp^>iapt ô tt,uAgE^rnen.t q^r that 3t^^ tyi^^+, eg f^€a 5a^ may^^ rundif^d ^ oo^neettore ^vJt^ t^te F]1tS "pasaae at& exvrtset be xcvisvdand sappfeme"vv #s io gqîîty^ vît^t#^ ^,gm^6thCnf^

A^^► sattiug, aaide I>s^r fa#tura of thil UZI ftdy ailo-dietma ItEVonsa (ta ow txm.t ifinb ac senie appom to YoElept I)1TS'S fnfcatEon ta mzse ttta [1]i;[; Study In oaOrdanats 6owvJit3) t^s c^Îy ti^ritlt tf^ Agâmnes,t, tf^y cûni3^t^ ^► bc tit>z^#enta^y âw^d. `;rtsp '^^ ^larc^ Ix MorFtn.+'eniknm aW. the Wvts ApA20 Memormlan address f1loa Aiudaqitetitat flssvs.-

Meat 9nrnpaftitty, sa rcnb'rfl theraici, #hd ^ftt4y duea: >gat gtas3yzo tka fram coîttlrgs rqû^ti^ ifro4 fher dOxqra of itatLrqCk 8od atkd ôs6tiuut-13nnlevard by n[a City iot' Ftzldttwia mid tbp M kuponsrr ^naet otenr tt ►ai, dVftn ttia ^guzaerre l3sê^nbat 13, ^4I0' leit^r.aî^ t1^c,^naoi^y t^^cobâ^s ^rom alfi^ra ta th^ s^nQ effact, tim i^R,S St^^y tv,[^ tû# st^ty tt,e e€^t^ ni';he ^losu^^ ad'It^ti^rvk ita^d. ^s yau.laa^vw ^^ kna^v, legtaiîotiwas pass^ j^ ts^c^ t3'sya eg^ ^#^m t^.e Fairt^r^ GÊy ^.'ouno^ x^thali^cxl :otoaure Of i^c#ûoa^ 1Zditt^. Iâltlsed 1^ s oopy^ o4dsa d^fi0ie^ d3n^ne^, Tl^g Er^^tttQUfi`^ ^^co^d ^ts§ponae sppt^^d. t^ s^ca ^viQr Ûtt^S's assarttût ttt^ s€^me tê.Itat$êtc âsd oiast^x^ ^p,iafeôrt v^sa #abIt^! ^ tbrt ti^tp, ^t^dy o£ oozssiitlons ta^ft^ Iîtc► tiecotR^t au^lr otasure.i wa^ tttf^^Ce^sary. Ae ttta ^'afe^s Lav^ ^fe^rly r^ê^! s€^raa tTia ^D A-iueor's Saroct tteSlrow nlit# tho vlasgm tiss: nat only bm aWttio,dxadi ttut fi #inngftt,-thc UgS Stu4y,utd, isdeed, smy tnftte stsrciy, aW nnaayxg #tdi gconar[V. SiR+i1ttm- ti? ioyukC -ffii8 not a1lIynieke1- e1k ens{ysFx of tha T4aoj bnpRd OfOO pkojb-gl. WoMm, ht€ atsa ole;irly vialates ttw AgrGGtx+oat, .4s $uefi, tho Evgindpr's Seconfl RRSpmse- tynusfi bo supplotom*d tcz edsfzm tfits netv in€owatis% as wait.as fbo otberaat^mikt# sut #bstl€•isi theWt1k .Apflf.20 1W'e,=zvadin:

'i#ta Lw*Ey 1?ttrties', in pFrtwer tw Cuttniy Enoteer, brWjlfirtg t%strirspottsiTiil^^e^ tn t3ta Cauu#y siid lfs Mdeuts, 3roust oqtute tLat, regat3lesk of tite: partroular6 qf IFid [" Rr;^pP.jISC` 010 Lm StEldy bq iQYlS$4( drd $tlPPW71CI3tL't;: to 3it1lf28S the ^6nCO31s 3'21SCd by th0 14fontroso y=Wasi ^klw'vu, AMM and ot}= so tltat auafl parf.ies amcl.tho puiy1W Isu A&p hd*xdanrl eddtcsg-f.h4 Irfifmt of tho pfojwt.

~~I 700k f"ara€ tn the 6pp04►w#ty fA ftcnss Ike MS SMOY, tfae I'tcrjeat t}ac1 t1ia Agecment at your evtiost raWeP(eux- " Sizw^^ly ^ra^r^,~~

Mrbett Nemm, Prln*rit VI(ast ^dsr)Ê p'â^ I.^ttid ^m[n4t^hils aud Mankrrso ketalf Asqs(efeg tiintted hmcmhfp fttqsd►+es O.M. 300 #A"se, *r#eltt CqtntYRtsiateeed pffi+sefia emtl EL ad i mat matE SpriuSeti znfieinspcatoz, Crnplay-TmvneL3p wi17i:ftftl. Ratit, ^., ^rlayors Ci^ of atrâwi^

~~WMMRA 0393: Attost4,Aft~~

~~VIA noRitAiL.IamSs~~

~~Aiam Brutiaaa# Siamndt 0oupfyUtg[Re0r (ajsp vag *^Wafl. gbri er swttuti! iaeiri^tt~~

~~Ai<.iqn, QWo 44M4&43~~

~~a-am€nit OuunfyFlmoIng cdmlt*slc#? 175 -9. MaW St.,Roomr= Akra% OI4o44^08~~

~~TAQ VOuntyorSurrlanit, %zo 1tELssoft M. Rty, I^xaaui';Ys 610 $11i1du& Stlti71p0r 1-75- S. Uain Sf Alaou, Oldo 443 08-I31 4~~

ltat Hd[efa-m# Ageeonr,nt (tho "Agmmcnt'°) by strri ^g West I^fiaTkot 1aL=a Linxfted. )?nrtAcr'sb{p nnd Moztf,rasa.Rciafi Assootakoa Ltm3ttd ?arlitex-eliiis faalle^QVuly, vuil.le ki.usrano®tt Cmmon.s .T^p'Iftsget LLe, iEfa Y'Unaixvsop P^0-11W) -ano. Thq Sutatnit Caunt^ M^gin.woy Tlip. ftra3t €.òttniy P16wfig Caliuniss€rnt- mrd 'Fni: Cptrnty of &MtR1t, QJUIV(c,nlicdi7rafyi Oz-, "C oianty- Ysrklss) an d #ho prorMecl dat•el6ltinau*by LRO 1^nireF4ênt edn#gaxiy, UG xnd its afklliaires (ca]Icuti.vQty, the "I.avey: Part4as"} tio#^t^,îoad, Cv^lc^`;(^plvdalu^ Utun (ii^^".^^ject"j:

~~Nax tadica and Ovnil.emeni~~

As ym know7 URS Cazporatiast MU") prdpWAo ìiailh Iopact St* fox Itpthecsok R,etail CrinW' datcd ;%pWbea, 2{Ti ii ^ltk ê^^so€ tis ^ 1!r4ject, (tlie "Original [11iS Skusi.yF'), '^ô ^tndcxs^gr^c^, b^ ^t^> ^ tiâ ôtût^YrÊtes âted Novez^her3, 7^3^fl, ' ^Get forkii lVhy tha Caunty Pariiea had'jurladWun. over d►a I'xajeat,Vhy ktia Ag.rmne* appifed ta #^q Anj0d andto many AWtnaf khc 046alURS ftdy, Addidci2jatiy, tit$ Cify iaf A14wn ('°,Fexrawd) and- tho Akxm 1Vlozapoilian .Axea T.rtft atudy (C'AMA'f5."} snbm(!#e[I to tb 'Sqns.mik Comtty. Augfirtc-6r- (th. "Ehginecr") kiielr 4wrc deWed comtuatts to tlin Ort&al, CIR3 Stddy. Ry leiter &kisd.Deoendser 0, 2010, the Enghje6r ftvs*4 ta Czpt$y xoK-osbip ("C'aplpy"): its ommeuts f* the aig1iw URS 8#xasiy ('00lWCq:iv*; tiza "Utioi Bhginecr Qarffilonts"% uvfi3oh mitiaf wAm conlntEnf-^ s}tâilâ]ty'istaarl3ara^ th® wniuaents af E6:aUm#rose,, l'wiies as weg v #ha owutmts pram Fa1rlawn, AMAx'S 4uc1 ntlivro. Ifli,B .xesponded tq Gnninienis ty [eftor (1ate1 Febzuar,y i6, 2ol i "). Tha Wexsi^10d, i;ty leftet .datecl-ilrinrcZ► ^^, 2011,.}^îdet^ kîe Înnttê'P^r(i^s` earrxtrJeatts tt^ ^^'^,î^,^^puse, jnûc^^r^g n I^fet^4tktndu^ ôr^ i^clT^ +.rks,4osiates^ ke. ("Wa;ls") datsi.i ,14i:artb 14 20it ^the Vrfls ftrek 1 xMaWwvjnft"^. C3a Mareh 23, 2011, #ItcIpgW= "nk- t3];G 1W o4miztehis to tLe URS Respajm (ft "Di3lneer's. Second Rospopso"). By feitcr da^

UkfMMRA 0396 April 24, 24t1; tita tutdersfgd6d provlkd ihe Man(xaso OartW-' ca=m-smM to ikn )3sgtneWa giasnd tte^papso itwittd'i ng aMemomstzdtmt fiom.We1ls AU6 ciate{l. Agit 20f 2011(tlie "W$lIe A.l*i ?A Ivtetuorattdu>r,'"}. t1RS-Prepareti and subrtt#(W ft `ôMtaak Raad R^kait. Developmeuf Tiuffiq; k^mpict Study OVlGy Ttuwtisttllsx p7iiok" c?itted ,as of x'^t^ 20 t^" ^srl^ô[z eâxe^îly is ^ 1e^lsed ^xs3cir^ nP`tl^ ^lr^Î F7^25 ^h^dy iuî w^ji^ sbetl, •with atzt [x OxW)tai ^S audy, bo ro£+sfrcd w eo&eAtrcIy K=Ja na, f,itd O[AM stuiJe.

^Vella.ltas miaArec[ tlfc Un fffttdy^nd huprovided a now Mmnomidutt, da#ec( Auypst 2; 2111, scttino fbrth spevl#to responses anct- mnnfonta• tbato, a co.Py ofwk'ivh jo cnclwwd fiaroMth (tlja ',^Rlla..Artgnst ^N,CetgnwWwg")K 1?leEm oonwdar tfie swma tuid this Intter, f^ edditlda #h! 0 camudttts prwImsIy prav" to it*-its'e agaW raslroom of tte M4ntnaso Fartlw, ;w weil. ng awiir.tvod (nnd mw third) ftmaI cEemwx1 tllat ttu3 t.ronty PartEes coWply ),Atlt tI6 ferras and -ctrndstlpns of the Sottlnrmeant Aorecexent md recouirti tEvtt either if neW T`ra^^c ^npadt Stpdy ba If'virf`4tmed pttisawd to tlu. Agx irxtmt tr. Wat thaYA5 Stt;(iy ba xouisod and siappTemeatrA so. ia tu comply vith tho AgteCntera:

Alao, ip. wItnt I hopo iv -becam.is3g mte W ita• rqdi#idtt a tMtd tlrxl% I jwte. that, aoidts frain 00 hifM cifMat'M Study tdE orttjxly°tivo $r AVccotaai#x €t cotttluea to k ^ì3ndatnstyla3ky ftved. -4-a 'Woljs Nlaroh 11 Metttaras.tstum, tlni Wells ^lîl 2tJ 3femnjrandunt- erld ^ww Iiip Weila AcsVrst 2^^morar^dunr ^ve addressesl ^d Coxt&na to addi•sss. tfoEi fucidtuuen#at flasivs. Amag fto ttklnkovs flaws' axto most Irttp9rtantCy, desûj^ #]ce ^tm^'s êa^s^rc^r 13, 2O1tI I0ti`^r^#h^ ^vloiltJra,^ Paifles'^ ^mm^ct^s aud. VAe ttuonirriity cLf ¢thQr caai nerila tu Hrf satô dtpct, OwM ftdy ketptkal4 ipoy€s tho faafW eorid'tt3l6ns itsmfling Mruw. tbe 0I61ura of Rnthraic iiota wagitt and whioTI otwo tltey iPord in thCu ttmd stacum-

Ilta Gotu3t} PatticB, iit pattictiltw Qia County Baghw, ix< fatilfBbg' th-eFr ^^s^^s^xEiRie^ tti thc--Con4y und its rr6fd*1s, xa,tist toquiro #hat, dw UIi.S g[ttdy to i•svised W s1tpplementeil to addte.aa -1I0 vr}1tMIituas-COnoMp raised by thc iViosttzase I'imios, rftir1om, AIt+ZATS rtnd o.t'hos. o thst sucii pactics sncl tla Iau-blio caat- riitty mmlyr,e aud addtc.ss tla0jttpmt of tlio Pwojcet.

~~^ Oi^k van ocAly essun^ss !(^t khe ^.^:r^y L'ativs• and ^7^ZS ai^^f tiltssî^lt^' ^4ittx 6ô^r Fênii^ 3^ tt^c ss^d dsSpsrstely hopi^g.thA#^;aCa^w^,yêt4F^,g uili jvin $êiâ I^.para]I^1^ststlîl.~~

~~VVMMRA0396 X fQole fozwars] to tisr, opisotfunfty to r36us s#E^o ft9 gl.tdy; tho Pmleut snd tho Agremnatr#-at yaur ugr]iayk=vejaimve.~~

~~Sincereiy yowra,~~

~~Prilxvapal- 'âst N^^rk^t Plaze, Tîf^d ]?arlnr,âlai^€ andfâxtîsa êt^#t Assaoi^tes ^,if^(f^ct Parlt^îsî^~~

~~^tY^]?^^ OiIITIRifEîfîEi^Cr.ilB^) . ^ît ^^KiuêP; ^nlagêetarF G'up1ey Toweghip Wil)tam J. Ratl, Tz, Msyaf-Gffiy t^fFakiam i~~

~~WMMRA 0397`~~