Post Hearing Memorandum of Defendant

Illegality aside, the offer cannot be considered by the Court further be genuine, when the Plaintiffs’ own evidence noted that the offer price of $85,000.00 was less that 50% of the purchase price paid by the Historical Society sometime during the prior two year period. In fact the testimony supports the inference that the property had a premium value to the Historical Society, since the Society has not other available properties available for expansion adjacent to its current location with the exception of the property at issue, and the Plaintiffs admitted the Historical Society’s need for additional space and display facilities! Again, there is nothing in the underlying, uncontroverted facts before this Court which suggest that the Ashland County Historical Society was not entitled to the demolition permit it received.
V. Public policy considerations.
This defendant further suggests to the Court that a denial of the relief requested by Plaintiffs will likely make this litigation moot, as this Defendant will be free to proceed with its intended demolition. The benefits of such a resolution of this case would include the preservation of the current legislation establishing and regulating the City of Ashland’s Historic Preservation District. As explained to this Court in the proceeding memorandum as further noted in the Defendant’s early hearing memorandum, there are serious deficiencies in the manner the legislation at issue has been enacted and in the manner by which the legislation has been administered. Further, there are significant questions as to the clarity of the regulations themselves and whether they can are constitutionally valid on their face. Denying the relief request will, for now, resolve such issues and allow the legislative authority of the City of Ashland to revisit this legislation and address its deficiencies without jeopardizing the legitimate goals this legislation was

Much of the argument on this point focuses on the intent and meaning of what constitutes a “bona fide” purchase or lease offer. Black’s Law Dictionary, Fifth Ed. Defines bona fide as something done “in or with good faith” and something that is “real, actual, genuine, and not feigned.”
There is absolutely no fact or evidence which supports any finding that a “bona fide” offer of purchase was ever tendered to the Ashland County Historical Society. The testimony reflects that an offer was tendered to the Ashland County Historical Society for the sum of $85,000.00. However, that offer certainly was not “real, actual or genuine.” First, the offer was made by an entity identified as “Center Street Historic District Association, Inc.” This entity was formerly a chartered Ohio not for profit corporation. As stipulated for the record, however, this entity was not validly chartered on or about September 29, 2006 when an offer was tendered to the Ashland County Historical Society. To the contrary, the corporation’s charter had been earlier cancelled in on or about December 12, 2002, and had not yet been reinstated even as of the date of this Court’s hearing on the request for a preliminary injunction.
Despite any “good intentions” on the part of Plaintiffs, as a matter of law, the Center Street Historical Society, Inc. Not only could not act in any legal capacity as a corporate entity, but it was prohibited by law from acting or attempting to act as a corporate entity! R.C. 1702.57 clearly stats with regard to nonprofit corporations: “No person shall exercise or attempt to exercise any rights, privileges, immunities, powers, franchises, or authority under the articles of a domestic corporation after such articles have been canceled or after such corporation has been dissolved ...” (Emphasis added). R.C. 1702.99 imposes a criminal penalty for a violation of R.C. 1702.57 consisting of a fine of not less than $100.00 nor more than $1,000.00. The mere tendering of an offer was a violation of law, and cannot be deemed to meet the definition of “bona fide.”

Plaintiffs assert that this Defendant failed to exhaust its administrative remedies by failing to appeal the “denial” of this Defendant’s application by the Historic Preservation Board. However, as noted previously, the Historic Preservation Board has no such authority, and there was nothing to appeal. This Defendant did, in fact, receive a demolition permit following 60 days after the its application was reviewed on August 2, 2006. Regardless as to how the action of the Historic Preservation Board is characterized, there was nothing for this Defendant to appeal, and this Defendant is more that willing to proceed with its rights under the demolition permit that was correctly issued.
IV. There never was a “bona fide” offer to purchase the 408 Center Street property; and even if there was, it does not preclude the issuance of a demolition permit.
Plaintiffs assert, that somehow the mere presentation of an offer to purchase this Defendant’s property at 408 Center Street, Ashland, Ohio somehow tolled or terminated this Defendant’s right to a demolition permit. Such is not the case, and the mere fact that an offer was presented to the Ashland County Historical Society has no bearing on this issue.
The language in Paragraph 5(C)(3) of the Ordinance does not establish a prerequisite to the issuance of demolition permit. When in conjunction with the language of Paragraph 5(C)(2), it is clear that Paragraph 5(C)(3) recognizes that after 60 days, the need for a demolition permit will either be moot, due to the consummation of an agreement to by and sell the property at issue, or the permit will still be required since there has been no alternative to demolition agreed to by the owner of the property. Again under the facts of the present case, the Ashland County

No such findings are reflected in the Board’s August 2, 2006 minutes. Again, the actions of the Board were not based upon the appropriate findings, were arbitrary, and denied this Defendant appropriate due process.
A third manner by which the Historic Preservation Board erred when taking action on the Defendant’s application for demolition, was when board member James “Chris” Buchanan, an individual maintaining a personal, stated pecuniary interest in the outcome of any action on this Defendant’s permit application, voted to deny the application as a member of the Historic Preservation Board, thereby (by his own testimony) acting in his own, personal financial interest. Action which is clearly a conflict of interest and which again denied this Defendant appropriate due process.
III. The Ashland County Historical Society is entitled to a demolition permit under the terms of the Ordinance notwithstanding any action by the Historic Preservation Board to the contrary.
As noted above, the Ordinance at issue, on page 8, requires that a demolition permit be granted upon review, or following a period of 60 days. It is not disputed that the Historic Preservation Board reviewed the demolition application of the Ashland County Historical Society on August 2, 2006. By the very terms of the Ordinance, the Historic Preservation Board was required to approve the application immediately or within sixty days. Therefore, on or about October 2, 2006, the Ashland County Historical Society was entitled to a demolition permit or “certificate of appropriateness.” Accordingly, the City of Ashland issued a demolition permit (Joint Exhibit 1 previously admitted) on October 3, 2006 as it was required to do.
Plaintiffs assert that somehow, this Defendant’s right to a demolition permit is impacted by the failure of the Historic Preservation Board to issue a “certificate of appropriateness.” Yet, the admissions of the City of Ashland clearly reflect that applications have been granted without the actual issuance of any such paper certificate, and that a document or certificate specifically identified as a “certificate of appropriateness” does not exist. The only certificate which can and be issued is a demolition certificate which, in fact, was properly issued by the City of Ashland on October 3, 2006.

II. Notwithstanding any unsubstantiated injury claimed by Plaintiffs, the Historic Preservation Board failed to procedurally comply with the provisions of the City of Ashland Ordinance No. 51-05 / Codified Ordinance Chapter 1191, and acted beyond the scope of its authority.
Ordinance No. 51-05 / Codified Ordinance 1191 grants the Historic Preservation Board very limited authority with respect to an application for demolition. Paragraph 5(C) on page 8 of the ordinance requires that the Historic Preservation Board review all applications for the “effects of the proposed action on the City.” (Emphasis added). It then directs that Board “shall” approve the application if it finds there will be no detrimental effect on “the continued historic architectural character of the area.” If the Board does find the demolition or removal will have “detrimental effects on the City” then “approval may not be given for a period of up to sixty days.” (Emphasis added). The bottom line meaning of this language is that once an application for demolition has been submitted and reviewed, it must be granted either immediately or within 60 days. There is no language anywhere in Ordinance No. 51-05 / Codified Ordinance Chapter 1191 which authorizes the Historic Preservation Board to flat out deny an application for demolition. By denying the application, the Historic Preservation Board acted outside the scope of authority granted to it by the Ordinance, and such action is arbitrary and unconstitutional.
As noted in the testimony offered by Plaintiffs, the Plaintiffs’ Responses to this Defendant’s Request for Admissions, and the minutes of its meetings held August 2, 2006 (admitted into evidence), the Historic Preservation Board failed to make any findings necessary before any deferral or postponement of demolition approval was permitted under the City’s ordinance. In Paragraph 5(C) on page 8 of the ordinance at issue, the ordinance allows the Historic Preservation to delay or postpone approval of any demolition application when it states that approval “may not be given for a period of up to sixty days.” However, before approval can be postponed, the Historic Preservation Board must find that the demolition

While this Defendant has previously made a number of assertions as to why this could should not grant the relief requested, for the purpose of this post-hearing memorandum this Defendant will focus on only one factor which, for the reasons explained below, requires that this Court deny the relief requested by Plaintiff, that factor being the likelihood or probability of Plaintiffs’ success on the merits.
I. City of Ashland Ord. No. 51-05 / Codified Ordinance Chapter 1191 was not legally enacted, and is therefore unenforceable.
R.C. 713.12 requires that before any zoning ordinance may be passed, “...the legislative authority of the municipal corporation shall hold a public hearing thereon, and shall give at least thirty days’ notice of the time and place thereof in a newspaper of general circulation in the municipal corporation.” While the City of Ashland is a charter city, and not a non-charter city, established law requires that the City of Ashland comply with the requirements of R.C.713.12 where a conflict between the City Charter and the statute exist, or where the City Charter is silent or does not set forth the procedure to be followed when adopting a zoning ordinance. Kling v. Nielsen (1957), 103 Ohio App. 60; Kachovec v. Akron (May 20, 1981), Summit App. No. 9948, unreported, 1981 Ohio App. LEXIS 13894.
Whether this Court subscribes to the analysis set forth in the Kling decision or the Kachovec decision, a reading of the City of Ashland Charter (Appendix 5) will disclose that City of Ashland Charter does not convey zoning upon the City as did the Charter in Kachovec. Therefore, the City of Ashland’s constitutional zoning power must be exercised in accordance with the requirements of R.C. 713.12. This challenge to the validity of the City of Ashland Ordinance No. 51-05 / Chapter 1191 of its codified ordinances is also well within the two year statue of limitations for procedural challenges established by R. C. 713.121.

Appendix 4 - copy of City of Ashland’s Fax Response to this Defendant’s Request for Admissions - no original provided to this Defendant.
Appendix 5 - Copy of City of Ashland Charter

Additional Factual Information - Discovery Responses
There are several additional factual elements, supported by the accompanying discovery responses fo this Defendant’s adversaries, which have bearing on the arguments asserted by Plaintiffs. First, as noted and admitted by the City of Ashland in its response to this Defendant’s first interrogatories and document request (See response to document request No. 2), there is no form utilized by the City of Ashland or otherwise specifically identified as a “Certificate of Appropriateness.”
Second, as noted in the City of Ashland’s response to Interrogatory No. 5, the City of Ashland Historic Preservation Board has authorized applications required a Certificate of Appropriateness” without the issuance of a written or printed form.
Third, and of significant impact on the entire validity of Ordinance 51-05 / Chapter 1191, is the admission by the City of Ashland, is response to Interrogatory No. 5, that no public hearing was held with regard to Ord. No. 51-05 to its enactment on June 7, 2005.
Fourth, Plaintiffs’ Admissions as well as the City of Ashland’s Admissions reflect that the minutes of the Historic Preservation Board fail to reflect any specific “findings by the Board as to the existence of any detriment to the City which would result from the demolition of this Defendant’s structure at 408 Center Street, Ashland, Ohio (See Request for Admission “k”).
As stated by this Defendant in its prior hearing memorandum, and as agreed upon by Plaintiffs in their post-hearing memorandum, in the Court must consider four separate factors in determining whether to issue a preliminary injunction.

In the Common Pleas Court, Ashland County, Ohio General Division
The Center Street Historical District Association, Inc. Et al.,
Plaintiffs
Vs.
The Ashland County Historical Society, et al.
Defendants
Case No. 06-Civ-444
Post-Hearing Memorandum of Defendant Historical Society
Now comes the Ashland County Historical Society, Inc., by and through its undersigned legal counsel, and respectfully submits the following memorandum of law and argument for consideration by the Court.
Accompanying this memorandum are responses to discovery requests received by this Defendant following the Court’s hearing. These response to requests for discovery include admissions by the Plaintiffs and responses to requests for documents.
Appendices
Attached to this Memorandum are the following Appendices for reference purposes:
Appendix 1 - Copy of City of Ashland Ordinance No. 51-05 / Chapter 1191 of the Codified Ordinances of the City of Ashland
Appendix 2 - copies of Plaintiffs’ Responses to this Defendant’s Request for Admissions (originals filed directly with the Clerk of Courts)
Appendix 3 - Copy of Defendant City of Ashland’s Response to this Defendants’ First Interrogatories and Document Request (Original Response - without attachments - has been filed directly with the Clerk of Courts)