Dollar General in Madison Twp. will proceed despite conflict, federal judge rules

Federal judge rules controversial Madison Twp. Dollar General will be built despite former Butler County zoning board member's financial conflict of interest. STAFF
Federal judge rules controversial Madison Twp. Dollar General will be built despite former Butler County zoning board member's financial conflict of interest. STAFF

A federal judge has ruled that while Alan Daniel’s actions regarding a zoning vote on the new Madison Twp. Dollar General store were “offensive” they aren’t grounds for granting an injunction.

Several neighbors near the controversial new Dollar General store in Madison Twp. filed a federal due process lawsuit hoping to stop the development because Daniel, a township trustee who recently resigned from the Butler County Board of Zoning of Appeals, had a financial conflict of interest when he voted in favor of several variances.

Daniel held the mortgage on the two properties in question that were owned by his son at the time of the BZA vote. If he had not participated in the vote it would not have passed for lack of a quorum on the board.

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U.S. District Court Judge Susan Dlott on Tuesday denied a motion for a preliminary injunction.

“The court concludes that plaintiffs have not established a likelihood of success because they did not have a protected property interest in the discretionary variance approval vote by the Zoning Board sufficient to confer standing or create procedural due process rights...,” Dlott wrote.

“The actions of Alan Daniel and the Zoning Board to have allowed Daniel to vote in favor of the variances despite his conflict of interest are offensive. The citizens of Butler County, including plaintiffs, deserve better from their governmental representatives.”

She noted in her opinion that the plaintiffs were not at the February meeting when the vote was taken to object, although they were notified. They also did not timely file an appeal to the Butler County Common Pleas Court.

“My opinion is this case is now over...,” Butler County Prosecutor Mike Gmoser told the Journal-News. “Obviously the judge was very correct in her analysis in all respects including her decisions regarding Mr. Daniel and everything she stated was warranted.”

The neighbors’ attorney Matt Miller-Novak said they are deciding whether or not to appeal, they have 30 days to file but they will decide sooner because “we consider time of the essence in this case.”

“Even though her opinion suggests we don’t have a property interest under Ohio statutory law, she clearly note that she felt that Mr. Daniel’s behavior was a clear cut conflict of interest,” Miller-Novak said.

The neighbors also filed a complaint with the Butler County commissioners, asking them to oust Daniel from the zoning board and undo the board’s actions on the zoning variances at the corner of Keister and Middletown Germantown roads.

Before the commissioners could hold a public hearing on the dismissal petition Daniel tendered his resignation in a letter to Chief Assistant Prosecutor Dan Ferguson.

“It has been an honor to serve the people of Butler County for so many years. I have always tried to do my best to make decisions that were in the best interests of the County and its residents, and I believe I have done some good along the way,” Daniel wrote.

“I am sorry for the trouble caused by the vote in which I participated in February of this year, and I can assure you I would make a different decision knowing the problems it has caused.”

The commissioners had no power to overturn the zoning decision.

The Butler County Sheriff’s Office investigated the incident after receiving a bribery complaint earlier in the summer, according to Chief Deputy Anthony Dwyer.

“A complaint was lodged with us about Alan’s activities and it was alleged that it was a bribery, some quid pro quo and money involved, that was the original complaint,” Dwyer told the Journal-News previously. “That started our investigation which led to multiple interviews and recovering documents. We’ve been in touch with our local prosecutor’s office as well as forwarding information the (Ohio) Ethics Commission. Pending the finality of that will just maintain it as an open case.”

The state Ethics Commission cannot comment on pending complaints.

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