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Judge expected to rule soon on TJX restraining order

Judge to rule soon on HomeGoods TRO

Saturday, August 25, 2018

By Jordyn Grzelewski

jgrzelewski@vindy.com

WARREN

Trumbull County Common Pleas Judge Peter Kontos will decide in the coming days whether to grant a temporary restraining order requested by a group of Lordstown residents who are opposed to rezoning that was approved for the construction of a TJX distribution center.

Judge Kontos presided over a hearing Friday on the TRO request that is part of a lawsuit filed Wednesday against the village of Lordstown and state of Ohio. The judge did not take action on the request Friday but gave the parties until Tuesday to file proposed orders and follow-up briefs. A decision on the TRO is expected sometime after that, and the judge set a hearing Sept. 11 to consider the plaintiffs’ request for a permanent injunction.

The complaint, filed by Lordstown resident Brett Dickson and about two dozen other residents who live near the planned project site, challenges the constitutionality of two sections of House Bill 292, which Gov. John Kasich signed into law in June. Parts of the bill related to the situation in Lordstown by expediting a referendum in cases of “zoning or other changes to accommodate a new use of real property located in [a village] that the legislative authority determines is likely to bring at least 500 new jobs and at least $50 million in investment to the village” between May 15 and Sept. 1. The TJX project is a $170 million investment that is expected to create 1,000 jobs.

The legislation pushed up a special election from November to this past Tuesday, when the referendum passed with 77 percent of the vote, according to final unofficial results from the Trumbull County Board of Elections. The results will be certified Monday.

The plaintiffs argue that Sections 12 and 16 of HB 292 violate sections of the state constitution that require bills to contain a single subject and laws to “have a uniform operation throughout the state.”

Presenting on behalf of the plaintiffs Friday, Atty. David Nichol acknowledged the unpopularity of his clients’ position.

“I think the popularity of the position we’re taking [would change] if this were being built in someone else’s backyard,” he said.

He also noted the potential harm to the public interest a disruption to the project could cause, but said, “I think the counterbalance to that is, are we just going to throw our constitutional rights out of the window because a Fortune 500 company comes to town?”

Nichol argued the sections of HB 292 in question violate the one-subject provision of the state constitution because HB 292 was an appropriations bill to which legislators added on amendments related to the referendum.

“That sticks out like a sore thumb in comparison to the rest of the bill,” he said.

He argued the bill violates the state’s Uniformity Clause because it defines so specifically the cases in which the amendments apply.

He requested the judge grant a TRO until the Sept. 11 hearing.

On the other side, attorneys representing the village of Lordstown and state of Ohio argued the plaintiffs have no standing to bring a case.

Matthew Ries, representing the village, noted that opponents of the project had pushed for a referendum.

“Now that these landowners have lost, they’re backpedaling,” he said. “They should have filed this lawsuit 45 days ago. It’s too late. The election is over. The people have spoken.”

He and Assistant Attorney General Nicole Koppitch also refuted the plaintiffs’ arguments challenging the constitutionality of HB 292.

Ries said there is a precedent that courts do not challenge legislative bodies on the one-subject rule for bills “unless there is a manifestly gross, fraudulent violation,” a standard he said this case does not meet.

He also said that just because a law uses specific language does not mean it violates the Uniformity Clause, because there is potential for the law to apply to other villages.

Ries also argued a TRO would cause harm to third parties, saying, “The stigma of a TRO is going to send the wrong message to TJX. They’ve already gotten a lot of resistance.”

He and Koppitch asked the judge to deny the TRO request.

Although the judge did not make a decision Friday, supporters of the project said they feel good about their chances.

“I think today was a good day. We don’t have a TRO. And I believe the points our counsel brought up were valid,” said Lordstown Mayor Arno Hill.

State Sen. Sean O’Brien of Bazetta, D-32nd, who helped write the HB 292 amendments, said state legislators thoroughly vetted the constitutional issues raised by the plaintiffs.

“It clearly meets the constitutional test,” he said, noting the amendments related to the referendum were passed as emergency measures, requiring a 2/3 super-majority vote.

Asked about the timing of the lawsuit, Nichol said, “Nobody wants to go through all this and file a claim. ... It’s the last resort to file with the courts.”