In the latest filings in the civil case between the Greenfield Exempted Village Schools District and the Village of Greenfield regarding a proposed bus garage, Highland County Common Pleas Court Judge Rocky Coss has denied a motion by the school district to reconsider his summary judgment ruling and made a clarification on admissible evidence.

As previously reported, the school district initially filed a civil complaint for declaratory judgment in Highland County Common Pleas Court dated Jan. 13, in which the GEVS Board of Education wrote that they are “initiating this lawsuit in response to the refusal of the Village of Greenfield to issue a variance to the Board in regard to the Board’s plan to construct a bus maintenance facility on property owned by the Board that is located in the village on the block bordered by Seventh Street, Eighth Street, North Street and McClain Avenue.”

In a different filing by the GEVS Board April 4, the board was “requesting summary judgment in its favor against [the Village of Greenfield] holding that [the GEVSD’s] proposed bus facility at issue in this lawsuit is a permitted use pursuant to” the village of Greenfield’s zoning code. Coss filed a decision May 2 denying that motion.

GEVSD counsel Nelson M. Reid then filed an affidavit calling for Coss’s disqualification, accepted May 17 by the clerk of the Supreme Court, which was dismissed two weeks later by Ohio Supreme Court Chief Justice Maureen O’Connor.

This month, GEVSD attorney Reid filed a “motion for partial reconsideration” of Coss’s May 2 decision denying the district’s motion for summary judgment, related “solely as to the Court’s ruling precluding the introduction of evidence at trial that [the district’s] proposed bus facility at issue in this lawsuit is a permitted use.”

In the May 2 decision, Coss ruled that the GEVS district “is not entitled to judgment as a matter of law based on its complaint." As also pointed out by Coss, this decision was in response to the April 4 motion, not the initial complaint in the lawsuit filed in January.

“This decision does not affect any of the actual allegations or claims set forth in the complaint,” Coss wrote. “However, the Court will not permit the introduction of any evidence that the proposed bus facility is a permitted use under the zoning code.”

Any other evidence will be related to the cases cited in the original complaint, Brownfield v. State and Laketran Bd. Of Trs. v. City of Mentor, Coss said in his May 2 decision.

“Should the [village] file a motion for sanctions under Civ. R. 11, the Court will set the matter for hearing for the purpose of determining if that is appropriate prior to the issuance of a final judgment entry in this case,” Coss wrote.

In his latest filing June 10, Reid asked the court to “reconsider this holding and instead permit [the district] to introduce evidence that the proposed bus facility is a permitted use.”

Reid argued that “declaratory judgment is a proper vehicle to declare that the proposed bus facility is a permitted use;” that “a reasonable inference may be drawn” from the district’s “verified complaint that [the district] disputes the village’s position that the proposed facility is not a permitted use;” that the district’s “compliance or noncompliance with the village’s zoning restrictions is before the court in this lawsuit;” that the district “was not required to first exhaust administrative remedies prior to seeking a declaratory judgment;” and that “the village’s own expert gave an opinion as to permitted use in his expert report.”

Judge Coss filed a response June 13 denying Reid’s motion.

“The Court finds that there is no reason to require the parties to brief this issue or to conduct a hearing as the matter requires a clarification of the Court’s prior ruling on the admissible evidence at trial,” the judge wrote.

For Reid’s argument that “declaratory judgment is a proper vehicle to declare that the proposed bus facility is a permitted use,” the attorney said this is “appropriate under the circumstances of this case” because the district has “alleged that it is immune from the land-use restrictions” of the village in the lawsuit.

In response, Coss said he has “already ruled on that issue, citing the case of Schomaeker v. First National Bank.”

“A party cannot use the remedy of declaratory judgment to obtain a declaration as to the validity of a permitted use under a zoning code,” Coss wrote. “It can use declaratory judgment to obtain a declaration that the code is unconstitutional or that it is immune from its provisions, but not to obtain a declaration that it is a permitted use.”

The judge added that based on Reid’s argument, “courts would be flooded with actions seeking declarations that a proposed use was a permitted use, and the administrative appeal provisions of the Ohio Revised Code and local zoning ordinances would be rendered meaningless.”

Coss also addressed the GEVS district’s argument that they were “not required to first exhaust administrative remedies prior to seeking a declaratory judgment.” In his motion, Reid argued that the fact the school district “did not seek to exhaust administrative remedies” and “allegedly did not pursue a ruling from the village as to whether the proposed bus facility is a permitted use” should not “preclude [the district] from introducing evidence that the proposed facility is a permitted use.”

Reid wrote that the district “did in fact seek approval from the village” by seeking a building permit and a variance, after which “zoning approval was immediately denied.” The attorney also argued that “a governmental agency is not required to exhaust administrative remedies when the entity seeks to invoke the defense of immunity” — which Reid said the district is doing through their lawsuit — or if doing so “would be futile.”

“It was the Village who instructed Plaintiff to apply for a use variance,” Reid wrote. “Continuing to seek approval from the Village that the facility was permitted would have been a futile act.”

As pointed out in Coss’s May 2 judgment order denying the GEVS district’s motion for summary judgment, the court “has no jurisdiction” over the district’s claim that the bus facility is a permitted use.

“Therefore, the Court’s decision that it will not permit evidence to be admitted at trial regarding whether the proposed use is actually permitted under the zoning code will not be reconsidered to the extent that the Court is not going to make that determination in this case, and there is no need for extensive evidence on that issue as the Court has no jurisdiction over that claim,” Coss wrote in his latest entry.

However, the judge acknowledged the argument by Reid that the village “immediately denied” a request for a zoning variance for the proposed facility “could be evidence of a reasonable attempt on the part of” the district “to comply with the zoning code.” As a result, Coss said he would allow “introduction of evidence by either party” regarding that process, although he still would not determine whether the proposed facility is permitted under the village’s zoning code.

“The Court will permit introduction of evidence by either party as to any submissions to the Village zoning representatives by [the district], the reason that it was submitted including the belief of the [district] that the proposed facility was a permitted use and the basis of that belief,” Coss wrote. “However, the issue of whether the proposed use is actually a permitted use is not one that will be determined in this action, only the [district’s] reasonable belief that it was permitted.

“The Court will permit limited testimony from [the district] as to why it held that belief at the time, if it did, but not for the purpose of determining that it was a permitted use under the code.”

A court trial is currently scheduled to begin Aug. 18.