MUNROE FALLS — The city and its board of zoning appeals are the defendants in another court filing related to the board of zoning appeals granting Circle K eight variances to build on the corner of Munroe Falls Avenue and state Route 91. This time it’s an injunction seeking to invalidate those variances.
The Kremer Family Revocable Trust filed on Jan. 15 a complaint for injunction for violation of the Open Meetings Act. The plaintiff contends the city’s board of zoning appeals illegally met in executive session on Oct. 23, 2018, to discuss nine variances requested by Circle K. The trust owns property adjacent to the property Circle K wants to build on.
E. Spencer Muse, the attorney for the Kremer trust, did not return a call seeking comment at press time.
Thomas W. Kostoff, the city’s law director, declined to comment because the litigation is pending.
The injunction case has been assigned to Judge Tammy O’Brien. No court date has been set, according to online court records.
The first filing took place last November when the Kremer Family Revocable Trust filed a notice of appeal against the city and the BZA concerning the board’s decision to approve the variances following an executive session on Oct. 23, 2018, "to discuss the variances and make its decision."
This previous case has been assigned to Judge Jill Flagg Lanzinger. No court date is listed on the county court’s website.
The recent complaint for injunction, filed on behalf of the Kremer trust by Muse, states specific guidelines to permit a public body to meet behind closed doors are outlined in state law and the city charter.
The BZA followed normal procedure during the regular public meeting, inviting Circle K’s representative to state the company’s case. Then the BZA allowed members of the public to comment.
"… upon the close of the public comments a motion was made by a member of the BZA to adjourn to hold an executive session," the complaint states. "… a member of the public in attendance requested the reason for the executive session." A reporter for the Stow Sentry was in fact that person who asked for an explanation.
The board chairman said BZA members "need to discuss the nine parts of the variances to see what, if anything, applies," the complaint states. Discussion followed on "the reason for and ability to adjourn the meeting to hold an executive session."
As the Stow Sentry reported at the time, Kostoff, who was present at the meeting, recommended against holding the executive session.
Kostoff said the board’s reason did not fall under any of the criteria for closed-door meetings listed in the city’s charter. Board Member Ken Salman said the criteria allows an executive session with the board’s attorney to discuss "disputes involving the public body that are to be subject of pending or imminent court action."
Board president Nicole Welsh noted that attorney Muse informed the board that if the variances were granted, his client (Kremer Family Revocable Trust) would appeal the decision to the Summit County Court of Common Pleas. BZA voted 4-1 vote to adjourn into executive session. Upon their return to public session, BZA voted without discussion to approve eight of the nine variances applied for by Circle K.
A member of the BZA stated a lengthy discussion took place in executive session.
The Kremer Family Revocable Trust, in its complaint, is asking the Summit County Court of Common Pleas to issue (1) an injunction compelling the defendants to comply with state law; (2) an order to provide the decision of the BZA to grant the variances to be invalid; (3) an order providing for a civil forfeiture, court costs and reasonable attorney fees; and (4) other relief as the court deems fair and equitable.
Reporter Steve Wiandt can be reached at 330-541-9420, firstname.lastname@example.org or @SteveWiandt_RPC.