This post was authored by Matthew Loescher, Esq.
Plaintiff Armatas went to the Administrative Offices of Plain Township and spoke with Defendant Ferrara and Ms. Vicki L. Lloyd, Zoning Assistant for Plain Township – notifying them that there was “a row of densely-packed, 20-foot high evergreen and/or Christmas trees”, which had been intentionally planted and cultivated by his neighbors along the rear properly line separating the Armatas property from the adjoining neighbors’ residence. Armatas claimed that the Hedge Ordinance, in effect since at least 1990, provides that all “fences, walls, or hedges in Plain Township…must meet zoning regulations with regards to height… In all Residential Districts, they…may not exceed 8 feet in height in or along the edge of a rear or side yard.” Ferrara allegedly told Armatas that he was not going to take any action because he felt trees and hedges to be different things. Armatas then filed an Original Writ of Mandamus requesting that the court order the Board of Trustees and Ferrara to enforce the Hedge Ordinance and oversee removal of the trees.
At the outset, the court found that since Plaintiff had not sufficiently alleged a constitutionally protected property interest, Plaintiff failed to state a substantive due process claim in the context of zoning regulations. Without a constitutionally protected property interest, Plaintiff could not establish that the Defendants’ actions amounted to a constitutional violation or satisfy his burden of showing that Defendants were not entitled to qualified immunity.
Plaintiff next claimed that the Board of Trustees’ and Ferrara’s interests were aligned and they engaged in a civil conspiracy to hide the facts that: Ferrara never visited Armatas’ property to inspect the property line and what was planted there; Ferrara admitted on a videotape that a row of trees could constitute a hedge under the Hedge Ordinance; and that one purpose of the proposed Hedge Ordinance amendment was to stop the litigation filed by Plaintiff against Haws and Ferrara. Notwithstanding this, Armatas failed to state whether his claim was a Federal or state law claim. Moreover, he failed to sufficiently allege how passage of the “new law” damaged his property or how it deprived him of a constitutionally or federally protected right. As such, this claim was dismissed.
Lastly, Plaintiff argued that the Defendants violated the U.S. Constitution, which prohibits Bills of Attainder, by “passing a zoning ordinance amendment that favors the property rights of one resident over another, continues to allow damage to accrue to Plaintiff’s property, and punishes Plaintiff for filing a lawsuit against two of the Defendants”. The court determined that the amendment was not specific to Armatas, but applied to all residents. Furthermore, the amendment did not impose a punishment upon Armatas. Accordingly, Armatas failed to state an actionable claim for unconstitutional bill of attainder.
Armatas v Hacus, 2021 WL 414403 (ND OH 1/4/2021)
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