Lawsuit challenges West Chester’s decision on Kroger shopping center

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Lawsuit challenges West Chester’s decision on Kroger shopping center

A developer who sought to bring one of Ohio’s largest Kroger Marketplace locations here is fighting back against a decision that effectively stopped development of the 36-acre project at Ohio 747 and Tylersville Road

A lawsuit filed in Butler County Common Pleas court by Blue Ash-based Silverman and Company alleges West Chester Twp. trustees overstepped their bounds by denying their zoning request for both phases of the project.

According to an administrative appeal, Silverman alleges “that the procedures followed by the trustees in denying the application blurred the line between legislative and administrative action, rendering the entire proceeding an exercise of quasi-judicial authority.”

In a declaratory judgment action filed in June, Silverman asserted that the trustees’ denial of the application was “arbitrary, capricious, and unreasonable and without a substantial or reasonable governmental purpose, and thus violated the plaintiff’s constitutional rights.”

Tim Burgoyne, Silverman and Company’s director of site acquisition and development, referred this newspaper to the company’s lawyers, who did not return multiple phone calls before press deadline.

The matter is a legislative decision and the administrative appeal should be dismissed, according to a motion filed by township zoning counsel Scott Phillips.

Township Administrator Judi Boyko said the township’s policy is that it does not comment on matters that are currently in litigation.

A status report hearing scheduled for July 15 was rescheduled for Sept. 29.

Barry Hood of Wethersfield Drive, a West Chester Twp. resident since 1989, opposes the plan because he is concerned about increased traffic, the safety of children attending nearby Lakota Freshman School and the value of area homes.

Hood said Silverman and Company’s lawsuit against the township is “ridiculous.”

“I think it’s unreasonable that they should be turning around and trying to sue the township of West Chester because of this denial for them to have the change of the zoning … to allow them to build this gigantic Kroger store at the foot of my street,” he said. “If (trustees) agree to have it done, I think that the people of West Chester are going to be furious, certainly the ones who are associated with it near here who are familiar with the area and the impact it’s going to have.”

In March, Silverman and Company requested that West Chester Twp. rezone the site to allow for the Crossings of Beckett Commons to be built there. The first phase of the development was slated to include a 133,000-square-foot Kroger Marketplace with a bank and a pharmacy with drive-through access, a Fred Meyer Jewelers, a small medical clinic, and a Kroger fuel center; an additional 15,000-square-feet of retail space alongside Kroger; and three out lots along Ohio 747.

A second phase called for three additional out lots along Ohio 747; another 63,000 square feet of retail/office space.

The township’s zoning commission recommended a buffer along Tylersville Road be constructed during the first, not the second phase of development, to mitigate the impact of a nearby subdivision. Burgoyne did not object to the condition at that meeting.

However, Burgoyne said at a March 4 public hearing that Silverman and Company could not construct the buffer without a planned second phase of development being completed. He said Silverman is “highly incentivized” to build that second phase, but that the project is market driven.

Burgoyne also said that the area designated for phase two would remain approximately 1,000 feet of corn field until that phase was implemented, providing a natural buffer between residents to the north and the project’s first phase to the south.

Trustee voted March 11 to deny rezoning of the site, saying it was, among others, inconsistent with the township’s land use plan and would be detrimental to the surrounding residential uses to the north and east.

Prior to the vote, trustee shared their concerns about Silverman reps saying it would be impossible to develop both phases at the same time. They worried aloud about the developer possibly not ever starting the second phase and the site sitting dormant as a result without the buffering.

That matter is set to be resolved in the Sept. 29 hearing.

March was not the first time the township said “no” to the zoning for the site. A previous request was denied in 2013 by the township’s zoning commission, but then revamped and reintroduced earlier this year to include an increased amount of buffer space along Tylersville Road.

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