Filed by Blue Ash-based Silverman and Co., the lawsuit alleged West Chester Twp. trustees overstepped their bounds by denying their zoning request for both phases of the project.
West Chester Twp.’s zoning counsel then said the matter is a legislative decision and made a motion for the administrative appeal to be dismissed.
In June, Silverman filed a declaratory judgment action asserting 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.”
Judge Sage granted West Chester’s request to dismiss the administrative action, ruling the vote by trustees was a legislative decision. He also placed a stay on the declaratory judgement action filed by Silverman, pending appeal of the case.
Asked Friday if the company planned to request that the stay be lifted or if the company planned to appeal the case to a higher court, Tim Burgoyne, Silverman’s director of site acquisition and development, referred this newspaper to the company’s lawyers.
Multiple phone calls to those lawyers seeking comment were not returned before press deadline on Friday.
Barb Wilson, the township’s spokeswoman, said West Chester does not comment on a matter that technically remains in pending litigation.
“What we could say is this particular action does validate the township’s process,” Wilson said.
Silverman and Company early last year requested that West Chester Twp. rezone the site to allow for construction of the Crossings of Beckett Commons, which was set in its first phase to include a 133,000-square-foot Kroger Marketplace with a bank and a pharmacy, 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.
A second phase called for three additional out lots, 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 public hearing that Silverman and Co. could not construct the buffer without a planned second phase of development being completed. He said Silverman was “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 representatives 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.
Barry Hood of Wethersfield Drive, a street just across Tylersville Road from the proposed development, on Friday said he opposed the development because of the traffic problems it would cause.
He said he was pleased to hear the court had ruled as it did and praised trustees for attempting to hold Silverman to developing the site all at once or not at all.
“When the … folks who were representing Kroger brought up the issue of ‘Yeah, we can do all these wonderful things, but we can’t do them right away’ so it may not be done for five years, 10 years, who knows?” Hood said. “Trustees, in this case, were really strong and legitimate to say ‘Wait a minute. If we’re going to do it, we’re going to do it all in one package. We’re not going to play let’s wait for five or 10 years.”
Kroger spokeswoman Rachael Betzler previously told Journal-News that the grocer was planning multi-million dollar investments this year across the company’s Cincinnati/Dayton Division, including three new store openings.
A plan to bring a Kroger Marketplace along Ohio 4 in Liberty Twp. is scheduled to go before that township’s zoning commmission next Tuesday.
Altogether, spending on new store construction, remodels of existing stores and fuel center builds is expected to reach a total of $107 million in 2015, Betzler said.
Presently, Kroger operates 109 stores in the Cincinnati/Dayton Division employing more than 20,000 people, according to the Fortune 500 company.
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