Duke's K9 Dash N' Splash, LLC v. Zizka

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DUKE'S K9 DASH N' SPLASH, LLC, et al., PLAINTIFFS, v. JOHN ZIZKA, et al., DEFENDANTS.

No. 5:24-cv-218

United States District Court, N.D. Ohio, Eastern Division

August 28, 2024

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI CHIEF JUDGE UNITED STATES DISTRICT COURT

This action challenges conduct by a local zoning authority and local government employees. All defendants seek judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c). The first motion was filed by Dave Bultinck (“Bultinck”) Laura Chartier (“Chartier”), and Ben Fashing (“Fashing”) (Doc. No. 23); the second was filed by Freedom Township Board of Zoning Appeals (the “BZA”), Roy Martin (“Martin”), and John Zizka (“Zizka”) (Doc. No. 29); and the third was filed by Mary Helen Smith (“Smith”). (Doc No. 30.) Plaintiffs, Duke's K9 Dash N' Splash, LLC (“Duke's”) and Michelle Filler (“Filler”), filed a combined brief in opposition to defendants' motions. (Doc. No. 39.)^[1] Each set of defendants filed a reply in support of their respective motion. (Doc. Nos. 42, 45, 46.)

Also before the Court is plaintiffs' motion for leave to amend their complaint. (Doc. No. 31.) The BZA, Martin, and Zizka filed an opposition (Doc. No. 35), and plaintiffs filed a reply.

(Doc. No. 37.)^[2] Additionally, plaintiffs move to voluntarily dismiss their negligent infliction of emotional distress claim (Doc. No. 38), which defendants do not oppose.

Plaintiffs' unopposed motion to voluntarily dismiss Count VIII is GRANTED and, for the reasons set forth herein, defendants' motions for judgment on the pleadings are GRANTED as to the constitutional claims (Counts I, II, III, IV, and V), and plaintiffs' motion for leave to amend is DENIED. Further the Court declines to exercise supplemental jurisdiction as to the remaining state-law claims (Counts VI and VII).

I. BACKGROUND^[3]

This case involves a dispute over the denial of an agricultural permit by the Freedom Township BZA, a decision which was already appealed to and upheld by a state court. (See Doc. No. 17-1 (Portage County Common Pleas Court Opinion).)^[4] Although plaintiffs were originally granted an agricultural permit, that grant was appealed to the BZA, which held an evidentiary hearing on the issue and, after “consider[ing] all relevant factors,” determined that “the structures in question . . . were to be used solely for [plaintiffs'] business.” (Id. at 3-4.)^[5] Therefore, the BZA held, “the use for which the exemption was sought [was] not an agricultural purpose.” (Id. (upholding the BZA's decision as “not unlawful, unreasonable, [or] against the manifest weight of the evidence”).) Despite their unsuccessful appeal to the common pleas court, however, plaintiffs later requested and received “a new agricultural permit” in January 2023, and plaintiffs' desired “new building is now complete[.]” (Doc. No. 1 (Complaint) ¶¶ 54, 57.)

In February 2024, plaintiffs initiated the present lawsuit, asserting five constitutional and three state-law tort claims against the BZA and six current and former Freedom Township officials. Forty-four consecutive numbered paragraphs in the complaint set forth nearly four years' worth of “facts common to all claims” (id. ¶¶ 15-58), but none of the claims are tethered to specific facts, leaving the Court to guess which facts might support each claim. Further, plaintiffs insist that many of the complaint's allegations have “absolutely nothing to do with” the BZA hearing. (Doc. No. 39, at 5 (emphasis in original).) The complaint's kitchen-sink pleading style fails to fulfill plaintiffs' obligations under the rules. Bartlett v. State, No. 17-2274, 2018 WL 5116347, at *2 (6th Cir. May 9, 2018) (“A plaintiff ‘must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.'” (emphasis in original) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); Lee v. Ohio Educ. Ass'n, 951 F.3d 386, 392-93 (6th Cir. 2020) (holding that plaintiff's failure to “‘connect specific facts or events with the various causes of action she asserted' . . . violated Rule 8(a)(2)'s requirement that she provide the defendants ‘adequate notice of the claims against them and the grounds upon which each claim rests'” (citations omitted)).

The Court has nonetheless tried to connect the complaint's factual allegations to each of the specific claims to determine whether plaintiffs have set forth sufficient allegations that nudge their claims across the line from conceivable to plausible. As set forth below, the facts as alleged in the complaint, even if accepted as true, cannot sustain the constitutional claims asserted by plaintiffs; additionally, the Court declines to exercise supplemental jurisdiction over the state-law claims.

A. Pre-Purchase Period

Filler is the sole member and manager of Duke's. (Doc. No. 1 ¶ 6.) Although the complaint does not specifically identify the services offered by Duke's, it suggests that Duke's is involved in “dog breeding and training” (id. ¶ 21) and indicates that Duke's partnered with North America Diving Dogs (“NADD”) to host dog diving competitions. (Id. ¶ 39.) In May 2020, Filler was considering purchasing a 25-acre plot of land in Freedom Township as a new location for Duke's, which was located in Mantua, Ohio at the time. (Id. ¶ 15.) Before purchasing the property, Filler sought the guidance of the Freedom Township zoning inspector “to make sure that the plans for use of the [land] were acceptable[.]” (Id.) The zoning inspector referred Filler to defendant Ben Fashing, who was then a member of the Freedom Township BZA. (Id. ¶¶ 8, 15.) Fashing told Filler that the property was zoned for agricultural, commercial, and residential use and that she should complete a conditional use permit application and bring it to the July 2020 BZA meeting. (Id. ¶ 16.)

When Filler went to the July 2020 BZA meeting with her application, defendant Roy Martin, then a Freedom Township Trustee (id. ¶ 7), told Filler that “she was in the ‘wrong meeting,'” that “the conditional use permit application was not needed,” and that “the procedure was to inform the zoning inspector of their plans and that if the zoning inspector approved, nothing more was required.” (Id. ¶ 17.) Filler then spent the next several months, from July through September 2020, contacting “Freedom Township officials for answers about exactly what was required to obtain the permit to allow Duke's to relocate its operations.” (Id. ¶ 18.) Eventually, Filler “decided to again attempt to turn in a permit application at the September 2020 [BZA] meeting.” (Id.) At the September meeting, Filler was informed that the zoning inspector^[6] had resigned and that she “needed to contact the Interim Zoning Inspector, Freedom Township Trustee Jeff Derthick, who would review the application prior to submitting it to the [BZA].” (Id. ¶ 19.)

When Filler met with Derthick in September 2020, Derthick informed Filler “that he was waiting to hear back from the county prosecutor who was researching applicable case law, but that Filler could still meet with him that evening to review the completed application.” (Id. ¶ 20.) During that meeting, Derthick reviewed the application and told Filler that both he and the county prosecutor believed the land use would be agricultural. (Id.) Derthick therefore “informed Filler that no permit was required and advised her not to turn in the permit application.” (Id.) The minutes of the September BZA meeting “indicate” that both Derthick and defendant John Zizka, then a Freedom Township Trustee (id. ¶ 7), “stated publicly that, ‘dog breeding and training is agricultural[.]'” (Id. ¶ 21.)

“Based on the foregoing, in November 2020, Filler purchased the property and Plaintiffs immediately started improvements to be ready for the start of their season to begin on May 1, 2021.” (Id. ¶ 22.)

B. Post-Purchase Period

Beginning in January 2021, defendant Zizka “began a campaign against Plaintiffs, stating that the land use was not agricultural and that Plaintiffs needed to obtain a conditional use permit.” (Id. ¶ 24.) “On multiple occasions,” both Gerald Apple (the newly appointed zoning inspector) and Derthick “explained to Zizka that Plaintiffs were agricultural exempt and there was nothing that he could do to prohibit Plaintiff's [sic] intended use of the property.” (Id.) Apple ultimately resigned in May 2021, “claiming that he was constantly harassed by Zizka.” (Id.)

Also in May 2021, Zizka “stated publicly that he had contacted the Portage County Health District and filed a complaint against Plaintiffs for running an illegal campground,” which plaintiffs allege was a knowingly false accusation. (Id. ¶ 25.) Then, in June 2021, Zizka instructed defendant Laura Chartier, who was then the assistant zoning inspector but also the cousin of Zizka's wife, to issue a zoning warning to plaintiffs stating that their land use was not agricultural. (Id. ¶¶ 27-28.)

As a result of Zizka's complaint about an illegal campground defendant Mary Helen Smith, the Director of the Portage County Health District, began an investigation into plaintiffs' use of their property. (Id. ¶ 26.) In September 2021, Smith signed an affidavit for an administrative search warrant on plaintiffs' property, averring that she had “‘reason to believe that physical conditions [at Plaintiffs' place of business] . . . may exist that are or may become hazardous to public health, safety, or welfare'” and that the “‘conditions include but are not limited to activities being undertaken without a license that may meet the definition of a swimming pool; food service operation campground; and private water system; building and plumbing. [sic]'” (Id. ¶ 32 (alterations in complaint).) A Portage County Common...