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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Monday, December 17, 2012 12:05:22 PM
CASE NUMBER: 2012 CV 08769 Docket ID: 17762829
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
CITY OF CENTERVILLE CASE NO.
JUDGE
Plaintiff,
v.
TOM WHITESIDE AUTO SALES, INC. : APPLICATION AND MOTION OF
et al.
PLAINTIFF FOR A TEMPORARY
Defendants. RESTRAINING ORDER
Now comes Plaintiff, City of Centerville, by and through counsel, and hereby applies to
and moves this Honorable Court, pursuant to Rule 65 of the Ohio Rules of Civil Procedure, to
temporarily restrain and enjoin the Defendants Tom Whiteside Auto Sales, Inc., MidWestern
Lease, and Mark VanNest from engaging in activities as specified in the Complaint
Verified of
Plaintiff that is being filed simultaneously herewith. A Restraining
proposed Temporary Order
is included for the Court's consideration.
Respectfully submitted,
ALTICK & CORWIN CO., L.P.A.
/1/ScottA. LtberJna1/l/
Scott A. Liberman, #0058432
One South Main Street, Suite 1590
Dayton, Ohio 45402
Telephone: (937) 223-1201
.te
CORWIN
CO.,L.P.A.
Facsimile:
Email:
(937) 223-5100
liberman@altickcorwin.com
Attorney for Plaintiff
ONE SOUTH MAIN STREET
SUITE 1590
DAYTON, OHIO 45401-1016
MEMORANDUM
As set forth in Plaintiff's Verified Complaint, Defendant Tom Whiteside Auto Sales,
Inc., ("Tom Whiteside Auto") and Leasing
owns operates MidWestern ("MidWestern"), a
vehicle sale and service company located at 900 East Franklin Street in Centerville, OR 45459.
Defendant Van Nest operates MidWestern and responsible for ensuring the property at 900 East
Franklin Street in Centerville, OR 45459 ("Property") was compliant with the City of
Centerville Unified Development Ordinances ("UDO")(A ofUDO S9.29 is attached
copy hereto
as Exhibit "A").
Defendant Van Nest was notified by Plaintiff to contact an architect or engineer in order
to advise him of the necessary steps to make 900 East Street,
Franklin Centerville, OR 45459
compliant with B-2 zoning requirements. Defendant Van Nest was informed the Property
needed to be compliant before he received a certificate of use and certificate of occupancy.
On November 13,2012, Defendant Van Nest was informed that, based the
upon square
footage of the building on the premises and lot size, be (11)
there must at least eleven parking
spaces on the property for customers and employees. The eleven (11) parking spaces cannot to
be used for parking vehicles for sale, display or lease. On November 15,2012, Plaintiff notified
Defendant Van Nest that his preliminary drawing, which showed the placement of the eleven
(11) parking spaces on the lot, was not parking
sufficient to meet the stall size requirements set
forth in theunO.
On December 7,2012, Plaintiff received a Minor Site Plan application engineer
from an
hired be Defendant Van Nest. Plaintiff denied the application
Minor Site Plan in letter
.te
a
(attached hereto as Exhibit "B") to Burkhardt Engineering
CORWIN on December 10, 2012. The Minor
CO.,L.P.A.
Site Plan was denied because it failed, inter to provide
ONE SOUTH MAIN STREET alia, the minimum required number of
SUITE 1590
DAYTON, OHIO 45401-1026
2
parking spaces, the plan lacked sufficient labeling and detail to determine what being
was
proposed, itfailed to address the shared access with the property situated 888
on East Franklin
Street, and it reduced the minimum drive lane width and minimum parking/paving setback. See
Exhibit "B".
To date, Defendants continue to operate his business Leasing
known as MidWestern on
a
regular basis in violation of the
UDO. The test for determining whether a preliminary
injunction should be issued is well established in Ohio. It was set forth in the case of Thomas J
Dyer Co. v. Franklin County Convention Facilities Authority, 61 Ohio 2d 575
Misc. 132,
N.E.2d 532, syllabus ~ 1 (Ohio C.P. 1990):
"In ruling on a motion for a
preliminary injunction, the court should consider the
following:
Whether the movant has shown a strong or substantiallikelihoòd or probability
of success on the merits;
(1) Whether the movant has shown a strong substantial likelihood
or
or probability of success on the merits
(2) Whether the movant has shown irreparable injury;
(3) Whether the preliminary injunction could harm third parties; and
(4) Whether the public interest would be served by issuing the
preliminary injunction.
See also Frisch's Restaurant, Inc., v. Shoney's,
Inc., 759 F.2d 1261, 1263 (6thCir. 1985). These
four considerations are factors to be balanced; they are pre-requisites
not that are required to be
met. In Re: Delorean Motors 755 F.2d 1223, 1229 (6thCir. 1985).
Co., Upon balancing those
factors here, it is clear that Plaintiff is entitled to injunctive relief.
As the Verified Complaint establishes, Plaintiff has a strong likelihood or probability of
4w
CORWIN
success
to
on the
continue the
merits. Defendants
operation
Tom
of MidWestern
Whiteside
because
and
itis
Van Nest
in
Auto have absolutely no right
zoning
CO.,L.P.A.
not conformity with the B-2
ONE SOUTH MAIN STREET
SUITE 1590
requirements under the As of Defendants'
DAYTON, OHIO 45402.2026
UDO. a result conduct, MidWestern is operating in
3
violation ofUDO S9.29 Parking and Loading Standards. Under these Plaintiff
circumstances,
-
has established a strong likelihood of success on the merits.
As to the second prong of the test, whether the movant has shown irreparable injury, the
facts contained in the Verified Complaint further demonstrate that Defendants are severely
damaging the health, welfare and safety of Plaintiff and its citizens. The types of injuries being
caused by Defendants' actions are simply not capable of being fully addressed merely by
payment of money damages. For these reasons, it is clear that Plaintiff would be irreparably
harmed unless injunctive relief is granted.
The third consideration of issuance of injunctive relief is whether the preliminary
injunction could harm third parties. The requested injunctive relief is being sought only with
respect to the operation of MidWestern Leasing, and therefore, would not outside
harm any
party. Thus, Plaintiffhas established the third prong ofthe test.
Finally, the fourth consideration of whether the public interest would be served by
issuing an order and injunction has been satisfied. The public has a strong interest in relying on
Plaintiff to ensure that properties are being used in compliance with the permitted land use type,
which preserves the citizens' health, welfare and safety. The purpose of zoning is to put land to
use in a
manner best suited to serve a valid public purpose. To ensure a valid public purpose is
being served, governing bodies enact requirements for each of zoning
type classification. By
the issuance of this injunction, the public interest is furthered by preventing Defendants from
using the premises at 900 East Franking Street, OR 45459 in
Centerville, a
manner other than
permissible under the UDO's requirements for B-2. The public interest in preventing the parties
,te
CORWIN
CO..L.P.A.
from violating the UDO would be served by enjoining Defendants' conduct.
MAIN STREET
ONE SOUTH
SUITE 1590
DAYTON. OHIO 45402-2026
4
As demonstrated above, and in the Verified Complaint, the facts and law applicable to
this case clearly favor Plaintiff's position. Accordingly, this Court should grant mandatory
injunctive relief necessary to return the parties to the position that existed to
prior Defendants
operating MidWestern Leasing at 900 East Franklin Street in Centerville, OR.
For all the reasons set forth above, and based upon the Verified Complaint, Plaintiff
respectfully requests this court to issue a order enjoining
temporary restraining Defendants from
any and all activities as specified in the Verified Complaint, and such relief the
for other as
Court deems just and appropriate. A proposed Temporary Restraining Order is attached for the
Court's consideration.
Respectfully submitted,
ALTICK & CORWIN CO., L.P.A.
/;/SCO-ttA.
Scott
Libermaw
A. Liberman, #0058432
One South Main Street, Suite 1590
Dayton, Ohio 45402
Telephone: (937) 223-1201
Facsimile: (937) 223-5100
Email: liberman@aItickcorwin.com
Attorney for Plaintiff
.te
CORWIN
CO..L.P.A.
ONE SOUTH MAIN STREET
SUITE 1590
DAYTON, OHIO 45401-1016
5
CITY OF CENTERVillE, OHIO
- UNIFIED DEVELOPMENT ORDINANCE
F. Lighting Plan Submittal Criteria: See Article 5 for submittal requirements.
9.29 Parking and Loading Standards
A. Purpose
The intent of thissection is to:
1. Provide for off-street parking and loading areas to assure that all developments adequately and
safely provide for the parking, loading, and movement of vehicles on a premises.
2. Off-street vehicle parking and loading space shall be required for all land uses as specified in
the standards in thissection.
B. Off-Street Parking Standards
1. General Standards
Off-street parking facilitiesas required premises by this ordinance
a. on a shall be used solely
for the parking of motor vehicles in operating condition by patrons, occupants, or
employees of the premises.
b. A bicycle, tricycle or other similar small-scale,human-powered vehicle designed primarily
for the recreationaluse by a child shallbe exempt from these provisions.
2. Requirements applicable to a residential premises
a. All vehicle parking areas shall be constructed with a hard paved surface including
bituminous asphalt, concrete, paver brick, or other similar dustlesssurface.
b. Vehicles may be parked or stored outdoors in the front yard of a residential premises
provided that:
1) The vehicle is aself-propelled motor vehicle that is licensable for operation public
on a
street.
2) The overall dimensions of such a vehicle shall not exceed 8 feet in height,
8 feet in
width or 20 feet in length.
3) All vehicles including arecreational vehicle must be parked paved surface
on a in
accordance with Section 9.29, C. of this000.
Article
9 General Development Standards 9 Site Design
95
-
. -
January 23,2012
CITY OFCENTERVillE,OHIO- UNIFIEDDEVELOPMENT ORDINANCE
4) Only one such vehicle may be a commercial vehicle.
5) Front yard parking of all other types of vehicles not specifically permitted by this
including
000, Recreational Vehicles, shall be prohibited. However, any 1 vehicle,
except acommercial vehicle, may be temporarily parked in the front yard for loading
or unloading purposes for no more than 3 days in any 7 day period beginning the first
day the recreational vehicle is parked on the property.
6) A visitor's recreational
vehicle may be parked in the driveway for atime not to exceed
7 days in 6 month period beginning day
any the first the recreational vehicle is parked
on the property.
c. Recreational Vehicle
1) A
maximum of 1 recreational vehicle may be parked outdoors per dwelling unit.
2) A recreational vehicle shall not exceed 8 feet in width,12 feet in height,
or 30 feet in
length.
3) Recreational vehicle shall be located in the side yard of a residential premises. Front or
rear yard parking shall be prohibited except as provided in Section 9.29 B. 2. b.
4) No recreational vehicle shall be parked nearer to aside lot linethan 5 feet.
5) A recreational vehicle shall be screened in accordance to the Screening Requirements
contained in Section 9.25, Table 9.6 of the
000.
6) Refer to Article 3.13 H 5 for provisions pertaining to non-conforming Recreational
Vehicle Uses of this 000.
d. No vehicle shall be used for living, sleeping, housekeeping, or commercial
when
purposes
parked on a residential lot,
or in any location not approved for such use.
Side or of a
e. rear yard parking commercial vehicle shall be prohibited.
f. A commercial trailer shall not be parked or stored outdoors on residential premises except a
commercial trailer may be temporarily parked during the time of repair,maintenance or
construction of the residence and/or premises.
Article 9
-General Development Standards 9 Site Design
96
. -
January 23, 2012
CITY OF CENTERVillE,OHIO
- UNIFIED DEVELOPMENTORDINANCE
C. Size and Design
1. Off-street parking spaces shall meet or exceed the minimum design standards for parking lot
layouts as set forth in this section
of the The
UDO. minimum size for an off-street parking
space as indicated in Table 9.7 shall be 18 feet in length by
nine feet wide.
2. Minimum Design and Construction Standards
a. Off-street parking may be open to the sky, or enclosed in a building or structure, either
above or below ground. Off-street parking areas shall meet acceptable engineering
standards as set forth by the Engineering Department for such things as driveway widths,
island design, curbs, barriers,grades, stacking
turning radii, verticalclearance, and waiting
areas and drainage.
b. Non-Residential Uses (including Multi-Family Residential Uses)
1) Each off-street parking space shall open directly into an aisle or driveway of adequate
width and design for safe and efficient vehicular access to the parking space. No
parking space shall open directly onto any public street.
2) An aisle or driveway shall not be used for parking of vehicles.
3) All vehicle parking areas shall be graded and constructed with a hard paved surface
including bituminous asphalt,concrete, paver brick,or other similar dustless surface.
4) A driveway permit shall be required from the Engineering Department for any new
driveway opening onto apublic street.
5) A grass paver parking lot for the purposeof overflow or occasional use parking of
vehicles may be approved by the Planning Commission as a
part of amajor site plan.
c. Single-Family Dwelling, Two-Family Dwelling, or a Townhouse Dwelling
All vehicle parking areas shall be graded and constructed with a hard paved surface
including bituminous asphalt, concrete, paver brick, or other similar dustless surface.
d. Refer to Section 9.31, Access Control for Streetsand Highways of the UDO for driveway
width requirements.
e. Vehicle Inventory Lot
Article 9
-
General Development Standards 9 Site Design
97
. -
January 23,2012
CITY OF CENTERVillE, OHIO
- UNIFIED DEVELOPMENT ORDINANCE
1) The minimum design standards for a parking stall and drive aisle
may be reduced for a
vehicle inventory lot, as definedby this ordinance.
2) The City Planner or his designee shall approve the design of a vehicle inventory lot.
Figure 9.1
UD
AW2
TW3
TW4
Legend
A-Parking Angle TW2-Total Width of Two Stalls with a One-Way Aisle
SW-Stall Width on Angle TW3-Total Width of One Stall with a Two-Way Aisle
SL-Stall Length on Angle TW4-Total Width of Two Stalls with a Two-Way Aisle
SP-Stall Length Perpendicular
to the Aisle per Stall in the Total Width for Inter-Locking Stalls
I-Reduction
A WI-One Way Aisle Width
AW2-Two-Way Aisle Width
TWI-Total Width of One Stall with
aOne-Way Aisle
Table 9.7: Minimum Design Standards for Off-Street Parking Areas
SW -
Stall Width on Angle 24 9 9 9 9
SL -
Stall Length on Angle 8 18 18 18 18
SP -
to Angle
Stall Length Perpendicular 8 17 19 20 18
A WI Aisle Width, One-Way 12
-
12 12 18 24
AW2 -
AIsle Width, Two-Way 20 20 20 22 24
TWI -
Total Width,I Stall, One-Way Aisle 20 29 31 38 42
TW2 -
Total Width,2 Stalls, One-Way Aisle 28 46 50 58 60
TW3 -
Total Width,I Stalls, Two-WayAisle 28 37 39 42 42
TW4 -
Total Width,2 Stall,
Two-Way AIsle 36 54 58 62 60
I-
Reduction inTotalWidth for Interlock (Per Stall) 0 3.9 3.2 2.3 0
Note: All figures are measured
in feet unless otherwise noted.
Article 9
-
General Development Standards 9 Site Design
98
. -
January 23,2012
CITY OF CENTERVilLE,OHIO
- UNIFIED DEVELOPMENT ORDINANCE
3. Curbing and Wheel Stops
a. Where Required
A continuous curbing and/or the installation of wheel stops shall be required for any parking lot
or portion thereof, as determined by the City Planner or his designee, where any of the
following conditions exist:
1) Encroachment of a vehicle into any trafficaisle,pedestrian walkway or sidewalk;
2) Parking area abuts a
wall, light fence,
standard, or any other structure; or
3) A severe grade change at the edge
or embankment of a parking area.
b. Standards
1) All curbing shallbe 6 inches in height above finished pavement and may be made of
concrete, stone, timber or similar material. The use of asphalt as a curb material shall
be prohibited.
2) Wheel stops shall be made of concrete at least6 feet in length and
permanently affixed
with steel dowels to the paved surface beneath it.
3) All curbing and wheel stops shall provide a minimum clearance of at least 30 inches
from any adjacent sidewalk, traffic aisle,embankment, wall,fence or other structure.
4) A sidewalk adjacent to a building may be used stop providing said
asa curb or wheel
sidewalk is a
minimum of 6.5 feet in width.
Figure 9.2
A. ~
tlCI1 INN/Mt)M
H1"W$l!lNWl'Ia.
ðTOf' >>If> ðlD6-
w.4U(
e: 4
~W,w( FCtn
~,^.
NOT&: øø:>aw..
>4LX,^.I.4Y..
~110~
TO
.~
6T0f'.
W/15lit;
.
Article 9
-
General Development Standards 9 Site Design
99
. -
January 23,2012
CITY OF CENTERVillE, OHIO
- UNIFIED DEVELOPMENTORDINANCE
4. Drainage
All off-streetparking areas shallmeet the standards for stormwater as adopted by the
runoff control
City of Centerville.
5. Marking
Designated parking spaces shall be marked on the surface of the parking area with paint or
permanent marking materials and maintained in a clearly visiblecondition. Where driveways
intersectthe public right-of-way, the paint lines dividing vehiclepaths and other pavement
markings shall be in accordance with the State of Ohio Uniform Traffic Control Manual.
6. Landscaping Required
All parking lot landscaping shall conform tothe standards located in Section 9.25, D of the
UDO.
7. Parking for Handicapped Persons
Any parking area to be used by the general public shall provide parking spaces and an accessible
route designed and located to adequately accommodate the handicapped, and those spaces shall be
clearly marked as such. The number, design and location of such spaces shall be consistent with the
provisions of the City Building Code.
8. Mixed Uses
The total requirement for off-streetparking facilitiesfor mixed occupancies or for parking areas
shared by 2 or more buildings shall be the sum of the requirements for the various uses computed
separately.
9. Joint Use of Parking Spaces
The City Planner or his designee may authorize a reduction in the totalnumber of required off-
streetparking spaces for 2 or more non-residential uses providing their respective hours of
operation do not normally overlap. Examples of these typesof uses are restaurants, theaters,
churches, school auditoriums, banks, business or professional offices, and retail or personal service
establishments.
Reduction of joint use parking shall be subject to the following conditions:
a. Not more than 50 percent of the total number of off-streetparking spaces required may be
located on other premises.
Article 9
General Development Standards 9 Site Design
-
. -100 January 23, 2012
CITY OFCENTERVillE,OHIO- UNIFIEDDEVELOPMENTORDINANCE
b. The applicant shall submit data to indicatethat there is no substantialconflict in the
principal operating hours of the uses proposing to make use of the joint facilities.
parking
D. Location
1. Single- or Two-Family Residential Uses
a. Front, side,or rear yard parking shall be permitted for single- or two-family residential
uses.
The total paved area shall not cover
b. more than 35 percent of the required front yard of a
single- or two-family residential
use.
2. Multi-Family Residential or Non-Residential Uses (Excluding the Architectural Preservation
District)
All off-streetparking shall be located behind the minimum front, side, or rear setbackline for
parking or paving.
3. Architectural Preservation District
Refer to the Section 9.05 of this Ordinance for additionalrequirements.
4. Zoning District
All required off-street parking shallbe located in the same zoning district as the use served or a
zoning districtwhere the use served is a principal permitted use.
5. Proximity to the Use Served
a. All required off-street parking facilitiesshall be situated on the same lot as the use it is
intended to serve. However, if the City Planner or his appointed designee, determines that it
is not feasiblefor a building or use to fulfill their
totalparking requirement on the premises,
parking may be located off-premises provided that:
1) The farthest public or customer parking space is not more than 400 feet away from the
preilllses
2) The farthest employee parking space is not more than 1,000 feet away from the
premises
3) Such parking area meets all other requirements of this ordinance.
Article 9
- General Development Standards 9 Site Design. 101
.
January 23, 2012
CITY OF CENTERVillE,OHIO
- UNIFIEDDEVELOPMENT ORDINANCE
b. In no event shall the required parking for aresidential use be located elsewhere than on the
premises for which such parking is required.
6. Parking Provided Unde
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Monday, December 17, 2012 12:05:22 PM CASE NUMBER: 2012 CV 08769 Docket ID: 17762829 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION CITY OF CENTERVILLE CASE NO. JUDGE Plaintiff, v. TOM WHITESIDE AUTO SALES, INC. : APPLICATION AND MOTION OF et al. PLAINTIFF FOR A TEMPORARY Defendants. RESTRAINING ORDER Now comes Plaintiff, City of Centerville, by and through counsel, and hereby applies to and moves this Honorable Court, pursuant to Rule 65 of the Ohio Rules of Civil Procedure, to temporarily restrain and enjoin the Defendants Tom Whiteside Auto Sales, Inc., MidWestern Lease, and Mark VanNest from engaging in activities as specified in the Complaint Verified of Plaintiff that is being filed simultaneously herewith. A Restraining proposed Temporary Order is included for the Court's consideration. Respectfully submitted, ALTICK & CORWIN CO., L.P.A. /1/ScottA. LtberJna1/l/ Scott A. Liberman, #0058432 One South Main Street, Suite 1590 Dayton, Ohio 45402 Telephone: (937) 223-1201 .te CORWIN CO.,L.P.A. Facsimile: Email: (937) 223-5100 liberman@altickcorwin.com Attorney for Plaintiff ONE SOUTH MAIN STREET SUITE 1590 DAYTON, OHIO 45401-1016 MEMORANDUM As set forth in Plaintiff's Verified Complaint, Defendant Tom Whiteside Auto Sales, Inc., ("Tom Whiteside Auto") and Leasing owns operates MidWestern ("MidWestern"), a vehicle sale and service company located at 900 East Franklin Street in Centerville, OR 45459. Defendant Van Nest operates MidWestern and responsible for ensuring the property at 900 East Franklin Street in Centerville, OR 45459 ("Property") was compliant with the City of Centerville Unified Development Ordinances ("UDO")(A ofUDO S9.29 is attached copy hereto as Exhibit "A"). Defendant Van Nest was notified by Plaintiff to contact an architect or engineer in order to advise him of the necessary steps to make 900 East Street, Franklin Centerville, OR 45459 compliant with B-2 zoning requirements. Defendant Van Nest was informed the Property needed to be compliant before he received a certificate of use and certificate of occupancy. On November 13,2012, Defendant Van Nest was informed that, based the upon square footage of the building on the premises and lot size, be (11) there must at least eleven parking spaces on the property for customers and employees. The eleven (11) parking spaces cannot to be used for parking vehicles for sale, display or lease. On November 15,2012, Plaintiff notified Defendant Van Nest that his preliminary drawing, which showed the placement of the eleven (11) parking spaces on the lot, was not parking sufficient to meet the stall size requirements set forth in theunO. On December 7,2012, Plaintiff received a Minor Site Plan application engineer from an hired be Defendant Van Nest. Plaintiff denied the application Minor Site Plan in letter .te a (attached hereto as Exhibit "B") to Burkhardt Engineering CORWIN on December 10, 2012. The Minor CO.,L.P.A. Site Plan was denied because it failed, inter to provide ONE SOUTH MAIN STREET alia, the minimum required number of SUITE 1590 DAYTON, OHIO 45401-1026 2 parking spaces, the plan lacked sufficient labeling and detail to determine what being was proposed, itfailed to address the shared access with the property situated 888 on East Franklin Street, and it reduced the minimum drive lane width and minimum parking/paving setback. See Exhibit "B". To date, Defendants continue to operate his business Leasing known as MidWestern on a regular basis in violation of the UDO. The test for determining whether a preliminary injunction should be issued is well established in Ohio. It was set forth in the case of Thomas J Dyer Co. v. Franklin County Convention Facilities Authority, 61 Ohio 2d 575 Misc. 132, N.E.2d 532, syllabus ~ 1 (Ohio C.P. 1990): "In ruling on a motion for a preliminary injunction, the court should consider the following: Whether the movant has shown a strong or substantiallikelihoòd or probability of success on the merits; (1) Whether the movant has shown a strong substantial likelihood or or probability of success on the merits (2) Whether the movant has shown irreparable injury; (3) Whether the preliminary injunction could harm third parties; and (4) Whether the public interest would be served by issuing the preliminary injunction. See also Frisch's Restaurant, Inc., v. Shoney's, Inc., 759 F.2d 1261, 1263 (6thCir. 1985). These four considerations are factors to be balanced; they are pre-requisites not that are required to be met. In Re: Delorean Motors 755 F.2d 1223, 1229 (6thCir. 1985). Co., Upon balancing those factors here, it is clear that Plaintiff is entitled to injunctive relief. As the Verified Complaint establishes, Plaintiff has a strong likelihood or probability of 4w CORWIN success to on the continue the merits. Defendants operation Tom of MidWestern Whiteside because and itis Van Nest in Auto have absolutely no right zoning CO.,L.P.A. not conformity with the B-2 ONE SOUTH MAIN STREET SUITE 1590 requirements under the As of Defendants' DAYTON, OHIO 45402.2026 UDO. a result conduct, MidWestern is operating in 3 violation ofUDO S9.29 Parking and Loading Standards. Under these Plaintiff circumstances, - has established a strong likelihood of success on the merits. As to the second prong of the test, whether the movant has shown irreparable injury, the facts contained in the Verified Complaint further demonstrate that Defendants are severely damaging the health, welfare and safety of Plaintiff and its citizens. The types of injuries being caused by Defendants' actions are simply not capable of being fully addressed merely by payment of money damages. For these reasons, it is clear that Plaintiff would be irreparably harmed unless injunctive relief is granted. The third consideration of issuance of injunctive relief is whether the preliminary injunction could harm third parties. The requested injunctive relief is being sought only with respect to the operation of MidWestern Leasing, and therefore, would not outside harm any party. Thus, Plaintiffhas established the third prong ofthe test. Finally, the fourth consideration of whether the public interest would be served by issuing an order and injunction has been satisfied. The public has a strong interest in relying on Plaintiff to ensure that properties are being used in compliance with the permitted land use type, which preserves the citizens' health, welfare and safety. The purpose of zoning is to put land to use in a manner best suited to serve a valid public purpose. To ensure a valid public purpose is being served, governing bodies enact requirements for each of zoning type classification. By the issuance of this injunction, the public interest is furthered by preventing Defendants from using the premises at 900 East Franking Street, OR 45459 in Centerville, a manner other than permissible under the UDO's requirements for B-2. The public interest in preventing the parties ,te CORWIN CO..L.P.A. from violating the UDO would be served by enjoining Defendants' conduct. MAIN STREET ONE SOUTH SUITE 1590 DAYTON. OHIO 45402-2026 4 As demonstrated above, and in the Verified Complaint, the facts and law applicable to this case clearly favor Plaintiff's position. Accordingly, this Court should grant mandatory injunctive relief necessary to return the parties to the position that existed to prior Defendants operating MidWestern Leasing at 900 East Franklin Street in Centerville, OR. For all the reasons set forth above, and based upon the Verified Complaint, Plaintiff respectfully requests this court to issue a order enjoining temporary restraining Defendants from any and all activities as specified in the Verified Complaint, and such relief the for other as Court deems just and appropriate. A proposed Temporary Restraining Order is attached for the Court's consideration. Respectfully submitted, ALTICK & CORWIN CO., L.P.A. /;/SCO-ttA. Scott Libermaw A. Liberman, #0058432 One South Main Street, Suite 1590 Dayton, Ohio 45402 Telephone: (937) 223-1201 Facsimile: (937) 223-5100 Email: liberman@aItickcorwin.com Attorney for Plaintiff .te CORWIN CO..L.P.A. ONE SOUTH MAIN STREET SUITE 1590 DAYTON, OHIO 45401-1016 5 CITY OF CENTERVillE, OHIO - UNIFIED DEVELOPMENT ORDINANCE F. Lighting Plan Submittal Criteria: See Article 5 for submittal requirements. 9.29 Parking and Loading Standards A. Purpose The intent of thissection is to: 1. Provide for off-street parking and loading areas to assure that all developments adequately and safely provide for the parking, loading, and movement of vehicles on a premises. 2. Off-street vehicle parking and loading space shall be required for all land uses as specified in the standards in thissection. B. Off-Street Parking Standards 1. General Standards Off-street parking facilitiesas required premises by this ordinance a. on a shall be used solely for the parking of motor vehicles in operating condition by patrons, occupants, or employees of the premises. b. A bicycle, tricycle or other similar small-scale,human-powered vehicle designed primarily for the recreationaluse by a child shallbe exempt from these provisions. 2. Requirements applicable to a residential premises a. All vehicle parking areas shall be constructed with a hard paved surface including bituminous asphalt, concrete, paver brick, or other similar dustlesssurface. b. Vehicles may be parked or stored outdoors in the front yard of a residential premises provided that: 1) The vehicle is aself-propelled motor vehicle that is licensable for operation public on a street. 2) The overall dimensions of such a vehicle shall not exceed 8 feet in height, 8 feet in width or 20 feet in length. 3) All vehicles including arecreational vehicle must be parked paved surface on a in accordance with Section 9.29, C. of this000. Article 9 General Development Standards 9 Site Design 95 - . - January 23,2012 CITY OFCENTERVillE,OHIO- UNIFIEDDEVELOPMENT ORDINANCE 4) Only one such vehicle may be a commercial vehicle. 5) Front yard parking of all other types of vehicles not specifically permitted by this including 000, Recreational Vehicles, shall be prohibited. However, any 1 vehicle, except acommercial vehicle, may be temporarily parked in the front yard for loading or unloading purposes for no more than 3 days in any 7 day period beginning the first day the recreational vehicle is parked on the property. 6) A visitor's recreational vehicle may be parked in the driveway for atime not to exceed 7 days in 6 month period beginning day any the first the recreational vehicle is parked on the property. c. Recreational Vehicle 1) A maximum of 1 recreational vehicle may be parked outdoors per dwelling unit. 2) A recreational vehicle shall not exceed 8 feet in width,12 feet in height, or 30 feet in length. 3) Recreational vehicle shall be located in the side yard of a residential premises. Front or rear yard parking shall be prohibited except as provided in Section 9.29 B. 2. b. 4) No recreational vehicle shall be parked nearer to aside lot linethan 5 feet. 5) A recreational vehicle shall be screened in accordance to the Screening Requirements contained in Section 9.25, Table 9.6 of the 000. 6) Refer to Article 3.13 H 5 for provisions pertaining to non-conforming Recreational Vehicle Uses of this 000. d. No vehicle shall be used for living, sleeping, housekeeping, or commercial when purposes parked on a residential lot, or in any location not approved for such use. Side or of a e. rear yard parking commercial vehicle shall be prohibited. f. A commercial trailer shall not be parked or stored outdoors on residential premises except a commercial trailer may be temporarily parked during the time of repair,maintenance or construction of the residence and/or premises. Article 9 -General Development Standards 9 Site Design 96 . - January 23, 2012 CITY OF CENTERVillE,OHIO - UNIFIED DEVELOPMENTORDINANCE C. Size and Design 1. Off-street parking spaces shall meet or exceed the minimum design standards for parking lot layouts as set forth in this section of the The UDO. minimum size for an off-street parking space as indicated in Table 9.7 shall be 18 feet in length by nine feet wide. 2. Minimum Design and Construction Standards a. Off-street parking may be open to the sky, or enclosed in a building or structure, either above or below ground. Off-street parking areas shall meet acceptable engineering standards as set forth by the Engineering Department for such things as driveway widths, island design, curbs, barriers,grades, stacking turning radii, verticalclearance, and waiting areas and drainage. b. Non-Residential Uses (including Multi-Family Residential Uses) 1) Each off-street parking space shall open directly into an aisle or driveway of adequate width and design for safe and efficient vehicular access to the parking space. No parking space shall open directly onto any public street. 2) An aisle or driveway shall not be used for parking of vehicles. 3) All vehicle parking areas shall be graded and constructed with a hard paved surface including bituminous asphalt,concrete, paver brick,or other similar dustless surface. 4) A driveway permit shall be required from the Engineering Department for any new driveway opening onto apublic street. 5) A grass paver parking lot for the purposeof overflow or occasional use parking of vehicles may be approved by the Planning Commission as a part of amajor site plan. c. Single-Family Dwelling, Two-Family Dwelling, or a Townhouse Dwelling All vehicle parking areas shall be graded and constructed with a hard paved surface including bituminous asphalt, concrete, paver brick, or other similar dustless surface. d. Refer to Section 9.31, Access Control for Streetsand Highways of the UDO for driveway width requirements. e. Vehicle Inventory Lot Article 9 - General Development Standards 9 Site Design 97 . - January 23,2012 CITY OF CENTERVillE, OHIO - UNIFIED DEVELOPMENT ORDINANCE 1) The minimum design standards for a parking stall and drive aisle may be reduced for a vehicle inventory lot, as definedby this ordinance. 2) The City Planner or his designee shall approve the design of a vehicle inventory lot. Figure 9.1 UD AW2 TW3 TW4 Legend A-Parking Angle TW2-Total Width of Two Stalls with a One-Way Aisle SW-Stall Width on Angle TW3-Total Width of One Stall with a Two-Way Aisle SL-Stall Length on Angle TW4-Total Width of Two Stalls with a Two-Way Aisle SP-Stall Length Perpendicular to the Aisle per Stall in the Total Width for Inter-Locking Stalls I-Reduction A WI-One Way Aisle Width AW2-Two-Way Aisle Width TWI-Total Width of One Stall with aOne-Way Aisle Table 9.7: Minimum Design Standards for Off-Street Parking Areas SW - Stall Width on Angle 24 9 9 9 9 SL - Stall Length on Angle 8 18 18 18 18 SP - to Angle Stall Length Perpendicular 8 17 19 20 18 A WI Aisle Width, One-Way 12 - 12 12 18 24 AW2 - AIsle Width, Two-Way 20 20 20 22 24 TWI - Total Width,I Stall, One-Way Aisle 20 29 31 38 42 TW2 - Total Width,2 Stalls, One-Way Aisle 28 46 50 58 60 TW3 - Total Width,I Stalls, Two-WayAisle 28 37 39 42 42 TW4 - Total Width,2 Stall, Two-Way AIsle 36 54 58 62 60 I- Reduction inTotalWidth for Interlock (Per Stall) 0 3.9 3.2 2.3 0 Note: All figures are measured in feet unless otherwise noted. Article 9 - General Development Standards 9 Site Design 98 . - January 23,2012 CITY OF CENTERVilLE,OHIO - UNIFIED DEVELOPMENT ORDINANCE 3. Curbing and Wheel Stops a. Where Required A continuous curbing and/or the installation of wheel stops shall be required for any parking lot or portion thereof, as determined by the City Planner or his designee, where any of the following conditions exist: 1) Encroachment of a vehicle into any trafficaisle,pedestrian walkway or sidewalk; 2) Parking area abuts a wall, light fence, standard, or any other structure; or 3) A severe grade change at the edge or embankment of a parking area. b. Standards 1) All curbing shallbe 6 inches in height above finished pavement and may be made of concrete, stone, timber or similar material. The use of asphalt as a curb material shall be prohibited. 2) Wheel stops shall be made of concrete at least6 feet in length and permanently affixed with steel dowels to the paved surface beneath it. 3) All curbing and wheel stops shall provide a minimum clearance of at least 30 inches from any adjacent sidewalk, traffic aisle,embankment, wall,fence or other structure. 4) A sidewalk adjacent to a building may be used stop providing said asa curb or wheel sidewalk is a minimum of 6.5 feet in width. Figure 9.2 A. ~ tlCI1 INN/Mt)M H1"W$l!lNWl'Ia. ðTOf' >>If> ðlD6- w.4U( e: 4 ~W,w( FCtn ~,^. NOT&: øø:>aw.. >4LX,^.I.4Y.. ~110~ TO .~ 6T0f'. W/15lit; . Article 9 - General Development Standards 9 Site Design 99 . - January 23,2012 CITY OF CENTERVillE, OHIO - UNIFIED DEVELOPMENTORDINANCE 4. Drainage All off-streetparking areas shallmeet the standards for stormwater as adopted by the runoff control City of Centerville. 5. Marking Designated parking spaces shall be marked on the surface of the parking area with paint or permanent marking materials and maintained in a clearly visiblecondition. Where driveways intersectthe public right-of-way, the paint lines dividing vehiclepaths and other pavement markings shall be in accordance with the State of Ohio Uniform Traffic Control Manual. 6. Landscaping Required All parking lot landscaping shall conform tothe standards located in Section 9.25, D of the UDO. 7. Parking for Handicapped Persons Any parking area to be used by the general public shall provide parking spaces and an accessible route designed and located to adequately accommodate the handicapped, and those spaces shall be clearly marked as such. The number, design and location of such spaces shall be consistent with the provisions of the City Building Code. 8. Mixed Uses The total requirement for off-streetparking facilitiesfor mixed occupancies or for parking areas shared by 2 or more buildings shall be the sum of the requirements for the various uses computed separately. 9. Joint Use of Parking Spaces The City Planner or his designee may authorize a reduction in the totalnumber of required off- streetparking spaces for 2 or more non-residential uses providing their respective hours of operation do not normally overlap. Examples of these typesof uses are restaurants, theaters, churches, school auditoriums, banks, business or professional offices, and retail or personal service establishments. Reduction of joint use parking shall be subject to the following conditions: a. Not more than 50 percent of the total number of off-streetparking spaces required may be located on other premises. Article 9 General Development Standards 9 Site Design - . -100 January 23, 2012 CITY OFCENTERVillE,OHIO- UNIFIEDDEVELOPMENTORDINANCE b. The applicant shall submit data to indicatethat there is no substantialconflict in the principal operating hours of the uses proposing to make use of the joint facilities. parking D. Location 1. Single- or Two-Family Residential Uses a. Front, side,or rear yard parking shall be permitted for single- or two-family residential uses. The total paved area shall not cover b. more than 35 percent of the required front yard of a single- or two-family residential use. 2. Multi-Family Residential or Non-Residential Uses (Excluding the Architectural Preservation District) All off-streetparking shall be located behind the minimum front, side, or rear setbackline for parking or paving. 3. Architectural Preservation District Refer to the Section 9.05 of this Ordinance for additionalrequirements. 4. Zoning District All required off-street parking shallbe located in the same zoning district as the use served or a zoning districtwhere the use served is a principal permitted use. 5. Proximity to the Use Served a. All required off-street parking facilitiesshall be situated on the same lot as the use it is intended to serve. However, if the City Planner or his appointed designee, determines that it is not feasiblefor a building or use to fulfill their totalparking requirement on the premises, parking may be located off-premises provided that: 1) The farthest public or customer parking space is not more than 400 feet away from the preilllses 2) The farthest employee parking space is not more than 1,000 feet away from the premises 3) Such parking area meets all other requirements of this ordinance. Article 9 - General Development Standards 9 Site Design. 101 . January 23, 2012 CITY OF CENTERVillE,OHIO - UNIFIEDDEVELOPMENT ORDINANCE b. In no event shall the required parking for aresidential use be located elsewhere than on the premises for which such parking is required. 6. Parking Provided Unde