Newspaper Record of STARK/JACOBS in Avon,
Ohio -- March 19, 1999 to April 4, 1999

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"Savior or pest? Attorney Gerald Phillips ...

AVON -- A slight smile creases the face of attorney Gerald Phillips as he watches Avon's planning board fumble over procedure.

As the board debates the next move to approve a shopping center, Phillips -- sitting in the front row of Avon City Hall with legs stretched out -- quickly scribbles it all down on a yellow legal pad. If the Phillips pattern holds true, any errors captured in those notes will translate into a legal battle. ...

City officials who have sat across from Phillips in court said he is relentless and destructive. His few victories, they said, can be chalked up to the sheer volume of lawsuits he has filed and his passion for pouncing on technicalities.

''At what point can an attorney keep filing suits against local governments?'' asked Lakewood Council President Robert Seelie, whose city is currently battling Phillips in the Ohio Supreme Court. ''At what point do you say, 'Enough is enough. We're spending a lot of taxpayers' money.''' ...

Phillips said his goal is simple: to help citizens protect their rights. ...

That's exactly the message Phillips said he's preaching in Avon, a city eyed by two major shopping center developers. His message, however, may have been diluted by accusations he has joined forces with developers Richard Jacobs and Robert Stark in order to gang up on rival developer Mitchell Schneider, who wants to build the Avon Commons shopping center across the street from Phillips' house.

Phillips loudly denied those accusations, ...

''I never intended to be an activist,'' said Phillips, ...

Phillips said his wake-up call came in 1985 ... two lawsuits against the city of Lakewood, both involving the city's intention to sell Lakewood Hospital to a non-profit group. ...

At around the same time ... a similar struggle was under way with the Cuyahoga County-owned Metro Hospital (now called MetroHealth Medical Center.) ...

After the hospital wars ended, Phillips turned his eyes to Avon, where he and his wife have lived since 1983.

His first major crusade in Avon was against an income tax increase passed by council in 1989. Phillips gathered signatures, and successfully repealed the tax hike through a referendum.

But the issue was far from settled. Over the next five years, City Council voted two more times to raise the tax. Phillips followed suit, and led counter-attacks to restore the lower tax rate. ...

Phillips' next two clashes were far less successful in the court of public opinion. ... the emotions he stirred by fighting the levy issue that paid for the land where the new Avon High School now sits.

In February of 1994 voters passed the 1.25-mill school levy, but the school district hit a snag when the Lorain County Board of Elections discovered it had failed to post one of four election notices required by law.

Leslee Miraldi, an attorney who spearheaded the levy campaign, said the issue would have been easily resolved if Phillips and his client, Daniel Haradem, would not have filed an objection.

''I can't tell you how disappointed I was to see Phillips and Haradem come into court to contest the validation proceedings,'' Mrs. Miraldi said. ''The construction of the school was definitely delayed by the legal proceedings filed by Phillips. It was a very frustrating process.''

The move was repulsive to others as well. ''It came at a time when emotion was high,'' School Board President Leonard DeChant said. ... It was an unnecessary delay.''

Phillips felt the backlash on an August afternoon when a group of parents and children picketed his Detroit Road home. Proclaimed in bold purple lettering on a sign, the message was clear: ''Our kids need that land.'' ...

The battle delayed the opening of the high school by a year and cost the school district about $30,000 in legal fees ...

In the same year as the school issue, Phillips used a similar technicality to challenge a bond issue to expand the Avon Branch Library.

The Lorain Public Library won the case when the Ohio Supreme Court refused to hear it, but, again, there were scars: The library paid more than $100,000 in rent for a building it could not buy until the case was resolved and the bond issue money became available.

''It was frustrating because we wanted to move ahead and purchase the building,'' said Ken Cromer, the director of the Lorain Public Library. ''But a person has a right to appeal these things. That's the bottom line.''

Again, Phillips maintained that he is not against the library. He is simply for following proper procedure. ...

[Avon was forced to pay Phillips more than $20,000 in 1998 for legal fees.]

Though Phillips had been busy in Avon, he was not done with Lakewood.

Last November, he led a crusade to place two issues on the ballot -- one to repeal a $3 monthly water service fee, and one to require voter approval of water rate hikes, raises for city officials and income tax increases. The city administration openly opposed both measures.

The outcome was a half-victory for Phillips. Voters did not repeal the service fee, but they did support Phillips' proposal requiring a city-wide vote for raises, rate hikes and tax increases.

City officials said the campaign was Phillips at his craftiest.

''One proposal was that water rates should not be raised without the vote of the people, which is fine,'' Seelie said. ''But that was lumped together with income taxes. And you couldn't raise income taxes anyway without a vote of the people.

''If that was his doing, then he brought deception into this city. It was a very skilled political maneuver, but intellectually dishonest,'' Seelie said. ...

Currently, Phillips has yet another case against Lakewood pending before the Ohio Supreme Court. In it, he alleges the city took 60 days to hand over public financial records that should have been provided in less than a week.

''It's a major issue for the city,'' said Lakewood Law Director Kevin Spellacy. ''It could cost us anywhere from $20,000 to $40,000. I don't think these small citizens groups would be as happy if they knew all of the financial ramifications of what they've done.''

One of Phillips' biggest battles, however, is ... the proposed Avon Commons shopping center.

Since it was announced more than a year ago, Phillips has fought the 85-acre shopping center every step of the way. ... zoning lawsuit, and .... a lawsuit questioning developer Mitchell Schneider's landscaping plans.

Those legal brawls have left some people wondering if Phillips has teamed up with Stark and Jacobs in order to stop Avon Commons.

Both Phillips and his neighbor, Linda Eadelis, have been represented by attorney Timothy Grendell in separate cases involving Avon Commons. Grendell, a prominent land-use lawyer, has admitted to working for Stark in the past.

At two separate zoning board meetings where Schneider's plans were being voted on, Phillips presented expert witnesses with connections to the Stark/Jacobs group. One of those, Jay Gardner of the Metro One Design Group, did consulting work for Stark and Jacobs on their Avon plan. The other, landscape architect Steve Targove, also works as an attorney in the law office of Grendell and Targove.

Also, in his zoning lawsuit against Avon Commons, Phillips' co-counsel was Lorain Democratic Party Chairman Tom Smith, who is currently representing the Stark/Jacobs team in their Avon project. [Decision against Avon by Judge Thomas Janas on June 8, 1998. Timothy Grendell was also co-counsel against Avon.]

''Jerry Phillips has found himself on the same side as Stark and Jacobs and is promoting the same interests,'' Avon Councilman Jack Kilroy said. ''I think there's a very good question over whose interests he really represents. And in the one case blocking Avon Commons where Grendell appeared, I think there needs to be an explanation as to how Grendell got involved in that case.''

Phillips denied the charge. ...

Schneider, who has filed a libel suit against Phillips for comments made in a letter to the editor, said it would be ''inappropriate'' for him to comment on the attorney who scrutinizes his every move. ...

As word of the shopping center feud spread, so did Phillips' business. Recently, he has represented a group of Avon Lake residents demanding their road be repaved, a group in Elyria fighting water rate hikes, and a client fighting Lorain County to make sure the former Green Acres orphanage is either used for a children's home or returned to its heirs.

''They basically contacted me because of the Avon issue, Phillips said of his new clients. ''Word started to get around.'' ...

Avon Councilman Shaun Brady said Phillips' believers are dwindling. ''His credibility is really low. There's no doubt about that,'' Brady said. ...

Mayor Smith said he ... supports Phillips' right to question government. But his frequent contact with the attorney has tempered his enthusiasm. ...

''I wish I had more to say as far as positives go, but I don't,'' Smith said. ''He's like a toothache. It doesn't keep you from doing your everyday things, but you always know it's there.''

Phillips, of course, sees things differently. ..."


"AVON - ... filed a notice with the city Tuesday [3-23-99] ... "We filed the notice to make sure we had something in place to show we did not waive any of our rights on the complaint we filed with the Board of Elections on Feb. 25 [1999]," said attorney Gerald Phillips ...

A group of residents who oppose Avon Commons ... is collecting signatures to have the Avon Commons site rezoned ... residential ... They hope to ... place the issue on the November election ballot. The deadline is Aug. 19 [1999]."


"AVON - Mayor Jim Smith plans to sell property he owns on Center Road to avoid the perception of a conflict of interest with proposed retail developments in the area. ...

A group of residents led by attorney Gerald Phillips filed a complaint with the Ohio Ethics Commission stating Smith's land holdings should prevent him from discussing the [Avon Commons] shopping center. ...

Located on the west side of Center Road, [north of I-90] the house Smith plans to sell is being considered by Ann Forthofer, a former Avon Council President, as a site for her boot shop. ...

"I'd like to bring the boot shop back to Avon," Mrs. Forthofer said. "My husband's father's [Julian Forthofer] father [Joseph Forthofer] started it in 1948 ...

Smith said the other house owned by him and his cousin [Dale Smitek] [has] ... historic value. Built in 1843, the house at 1591 Center Road is considered to be the only pyramid-roofed, square stone home in Ohio, according to a book published by the Avon Historical Society. In 1937, the home was placed on the Register of Historic Buildings by the Department of the Interior.

"We would want to make sure that house was preserved," Smith said. "I think that it's a house that has to stay ...'' "


"AVON -- Two major commercial developments -- a superstore and a hotel complex -- are only one step away from a groundbreaking after receiving final Planning Commission approval last night [3-24-99].

Proposed by Curie-Hall Investment Company, the eight-acre project at the corner of Chester Road and SR 83 is planned to include two hotels, a Bob Evans restaurant, a convenience store, and one other undisclosed retail tenant.

The other project is a superstore, proposed by developer Mitchell Schneider at the corner of Colorado Avenue and Moore Road. ...

While Curie-Hall does not plan to break ground until June or July, Schneider said he hopes to begin his project by May at the latest. The 109,000-square-foot superstore is planned to open in November.

Schneider said he plans to screen the superstore from residents of the adjacent Windmill Village subdivision using mounded dirt and landscaping.

''From Moore Road, you're looking at shrubs, you're looking at pine trees, and then you're looking at shade trees and ornamental trees behind them,'' he said.

Schneider said he will put in the mounds and landscaping ''at the earliest practical time'' so that nearby residents are shielded from the project during construction. ..."

NEWS ARTICLE from THE SUN, 3-25-99, By CHANEL CHAMBERS, Staff Writer

"Avon Commons back to voters

AVON -- ... Former Avon Schools superintendent and resident Bob Barnhart ... began collecting the signatures to revisit the question in January ...

In the wake of the issue's loss at the polls in November [1998], Schneider unveiled plans to break the 85 acres into several small parcels, developing each on a piece-by-piece, speculative basis.

The first two projects, a business park and a small retail development, already have had preliminary hearings with the Planning Commission.

When Schneider introduced these new plans, many residents said they were misled ... and wanted a second chance to vote on Avon Commons. Some even said they thought a "no" vote on the original issue would have stopped all commercial development on the site.

Councilman at large Shaun Brady expressed his continuing support for Avon Commons, and congratulated Barnhart's committee on its work.

"It's a good project," he said. "It's proportionate to the size of the city, it makes sense, and I have 100 percent confidence in the developer to do a nice job." ..."

NEWS ARTICLE from THE MORNING JOURNAL, 3-27-99, By JOYCE McCARTNEY, Morning Journal Writer

"Motion asks judge to disqualify Phillips, Grendell from case

ELYRIA - ... Attorneys for ... First Interstate Development have asked [3-25-99] Lorain County Common Pleas Judge Edward Zaleski to disqualify the two attorneys because they are violating the Code of Professional Responsibility ...

The motion filed yesterday by Schneider's attorney claims Phillips has a conflict ... because he has testified at public hearings on factual issues involving the development.

Grendell's conflict arose when his law partner, Steve Targove, testified as an expert witness ... "The Code of Professional Responsibility is clear that under such circumstances, an attorney is not to accept employment when he knows or it is obvious that he or a lawyer in his firm will be called as a witness," Schneider's motion said. ... [When Phillips filed his suit on 2-23-99, he should have known that Targove was going to testify as an expert witness at the Zoning Board of Appeals meeting on 2-25-99.]"


"AVON - Developer Mitchell Schneider's attorney ... Richard D. Panza filed a motion Thursday [3-25-99] ... to disqualify attorneys Gerald Phillips and Timothy Grendell ...

First Interstate complied with federal law and reserved 7 acres to replace wetlands with the Sandy Ridge Wetlands Mitigation Bank in North Ridgeville in 1998. A hearing on the wetlands issue will be heard at 9 a.m. April 16 by Common Pleas Judge Edward Zaleski. The hearing will clarify whether the federal requirement for replacing wetlands or the city's restrictive ordinance will prevail.

In addition to the motion to disqualify the two attorney's, Schneider also filed a lawsuit against the city Thursday claiming that the city's wetlands ordinance is unconstitutional. ...

On April 9, 1998, Panza also had a letter delivered to [Stark/Jacobs] attorney Thomas Smith [head of the Board of Elections] of Elyria who then represented former Avon Council President Edward Krystowski's tractor sales business in Wellington.

In the letter, Panza accused Krystowski of moving forward with a land deal with developer David DiBenedetto of Westlake who had an interest in a project [now called Vista] proposed by developer Robert Stark and Cleveland Indians owner Richard E. Jacobs ... Krystowski resigned as Council President on May 26, 1998 ...

Investigators from the Lorain County Prosecutor's Office said some of Krystowski's transactions ... are under investigation ...."


"Avon Commons developer responds with counter suit

AVON - Developer Mitchell Schneider filed a counter claim [3-25-99] accusing attorney Gerald Phillips of using deceptive means in an attempt to stop Schneider ...

Schneider listed four counts against Phillips:


"AVON - Attorney Gerald Phillips filed court documents against the City of Avon in Lorain County Common Pleas Court on Monday [3-29-99] concerning the amount of landsacpe buffering for the proposed Avon Business Park ...

Phillips ... had filed an appeal with the Avon Board of Zoning Appeals, but the Board ruled on Feb. 26 [1999] that Schneider was providing the required landscape buffering ... [The meeting of the Board of Zoning Appeals began on 2-25-99 and lasted until after midnight; so the date of the ruling is 2-26-99. For clarity, the unanimous denial of Phillips' appeal will be referenced as of the 2-25-99 meeting date.]

The action filed on Monday by Phillips will be heard by Common Pleas Court Judge Lynett McGough."


"ELYRIA - ... Robert Stark and Cleveland Indians owner Richard E. Jacobs ... paid $5.4 million [3-30-99] to the Norfolk Southern Railway Co. for 222 acres north of Interstate 90 near Lear-Nagle Road and the Manco Inc. facility in Avon ...

Avon Mayor James A. Smith looked on the bright side of the transaction. Smith said the city had filed a lawsuit against Norfolk Southern about two years ago seeking $1 million for special sewer assessments.

Norfolk Southern refused to pay the assessments because most of the land is wooded and some of it was leased to farmers, Smith said. A trial in Common Pleas Court was postponed because of the pending deal, Smith said.

"The Stark-Jacobs purchase is good for the city. Whether Stark and Jacobs get the land rezoned, they're going to use it for something,'' Smith said. "I've always said industrial growth is our city's bread basket, but we'll just have to wait and see what happens.''

The Stark-Jacobs' partnership, JS Avon North LLC, paid $24,504 an acre and plan to use the property as part of its proposed Vista project. Vista will be a 500-acre development on both sides of I-90 between Jaycox and Lear-Nagle roads that includes commercial, residential and park land.

The railroad property, however, is zoned for industrial use and the developers want 150 acres of it rezoned for the retail portion of the Vista project. ..."

NEWS ARTICLE from The PRESS, 3-31-99, By JoAnne Easterday

"In the newest volley in the courts, developer Mitchell Schneider's attorneys have asked Lorain County Common Pleas Judge Edward Zaleski to disqualify the two attorneys Gerald Pbillips and Timothy Grendell ...

In a motion filed last week [3-25-99] there is a conflict listed in that Phillips has testified at public hearings on the factual issues involving the development. Grendell's conflict came up when his law partner, Steve Targove, acted as an expert landscape witness ...

Schneider said ... that Phillips' position as an attorney and a witness was structured "as a sham to block inquiry into his true motives."

Schneider added that he has filed four counter claims against Phillips, including malicious interference with the right to petition government; abuse of the process; intentional interference with prospective business advantage; and bad faith without reasonable investigation and reckless disregard for facts. In addition, there is a cross claim against co-defendent City of Avon regarding the wetlands ordinance. "We allege that the witness of wetlands is invalid," Schneider said.

"The Code of Professional Responsibility is clear that under such circumstances, an attorney is not to accept employment when he knows or it is obvious that he or a lawyer in his firm will be called as a witness," Schneider's motion said.

Avon Business Park is an alternative plan by Schneider to develop the property north of Detroit Rd. and east of SR 83. ... Citizens will again visit the issue on June 1 [1999] ... Some residents said they believed the issues were not clear during the campaign [fall, 1998] for the zoning change. Some said they thought a no vote would stop all development ...

Depending on the courtroom outcomes and depending on the vote of citizens on restoring the original plan, Schneider has the groundwork laid to proceed with either development."

NEWS ARTICLE from The PRESS, 3-31-99, By JoAnne Easterday

"With Avon City Council's approval, Mitchell Schneider of First Interstate Development said he will begin moving ground by the month of May at the retail site on Colrado Road [SR 611] at Interstate 90 and Moore Road. A November [1999] opening is planned ...

Richard Carlisle, also of First Interstate, had been working with the nearby residents to incorporate their ideas for buffering into the plan. There will be landscaping on the mounds [along Moore Rd.] and considerable landscaping along Colorado as well, Schneider said.

''Yeah, I'm happy,'' Pete Willis, who lives across the street from the proposed development, said. ''We (other nearby residents also present) just wanted them to do it right.'' ..."

LETTER TO THE EDITOR of THE PRESS, 3-31-99, by Bob Barnhart

"Members of the Avon Citizens for Avon Commons sincerely thank you for your support of our efforts to place this issue on the June 1, 1999 ballot. We firmly believe that your yes vote for the Avon Commons C-3 project will significantly benefit our Avon community.

We are in the early stages of organizing our Political Action Committee to promote the passage of the Avon Commons C-3 project. You are invited to attend our first public meeting on Thursday, April 1, 1999, at the Avon Public Library, 37485 Harvest Drive, from 7 pm to 8:30 pm.

In addition to providing you with the benefits of passing the Avon Commons C-3 issue, we will answer your questions, provide voter registration forms and solicit your input.

If any civic, school or church group would like to schedule one of our members to make a 20 - 30 minute presentation at your April or May meeting, please contact me at 937-6477.

Bob Barnhart, Avon"


"Jacobs now a big Avon landowner

AVON -- Developers Richard Jacobs and Robert Stark became land owners in Avon this week when a deal closed to buy 222 acres from the Norfolk Southern Railway Co. for $5.4 million. [See Map.]

The developers plan to use the industrially zoned property for their Vista project -- a 500-acre complex of stores, hotels, restaurants, homes and offices centered around a proposed new I-90 interchange at Lear-Nagel Road. They also have signed options to buy about 270 acres from other property owners, but have not yet purchased the property. ...

Industrial land in Avon has been selling for between $25,000 and $35,000 an acre, Smith said. Stark and Jacobs paid about $24,000 per acre.

''They've got an excellent piece of industrial property,'' Smith said. ''It's one of the largest pieces of industrial property within 19 miles of Cleveland. It's a prime piece of land.''

The land was one of the last parcels in Avon still owned by Norfolk Southern, which bought a total of about 1,100 acres along the railroad tracks in the 1960s, said Norfolk Southern spokeswoman Susan Bland.

''It was purchased as a potential site for industry coming in that would use the railroad,'' Ms. Bland said. ''But we've been selling various portions along the way.''

Smith said he was ''shocked'' that Norfolk Southern sold the land to Stark and Jacobs because the developers plan to use it primarily for a shopping center and not for factories that would use the railroad for shipping.

''That was also one of the contingencies -- they wanted at least 65 to 70 percent of their land to go to rail users,'' Smith said of the railroad. ''They would almost give you the land if they got a good rail user. That's where they make their money.''

Still, Smith said the land sale could work out well for Avon. Before the deal was reached to sell the land to Stark and Jacobs, the city was poised to go to court with the railroad over $1 million of sewer assessments the railroad felt it should not have to pay.

''It keeps us out of court,'' Smith said. ''I've been holding my breath so we didn't have to go through this.'' ..."


"Jacobs in Avon to stay

AVON -- The message was clear when developers Richard Jacobs and Robert Stark shelled out $5.4 million this week for 222 acres of Avon land: We're here to stay.

While the developers have been eyeing Avon for more than a year, the 222 acres bought from Norfolk Southern Railway Co. is the first land they have actually purchased.

And if everything works out for the Stark/Jacobs team, that land will be the first piece of a 500-acre project of stores, hotels, offices, restaurants and homes -- all of which would be served by a new I-90 interchange at Lear-Nagel Road they've offered to finance.

There are, however, problems.

Much of their land must be rezoned to allow for stores, hotels, offices and restaurants, and they must also receive city approval before taking the steps needed to build a new highway interchange.

So far, the city has not consented to either request made by Jacobs Group Executive Vice President Thomas Henneberry.

Some city officials phrased their concern carefully. Planning Commission member Paul Burik said the developers' plan does not follow the city's master plan. Council President Ted Graczyk said the ''trade-off'' of tax dollars for increased traffic might not be worth it.

Others were more blunt -- such as Councilman David Kaiser who said the plan ''scares me,'' and Councilman Shaun Brady who said he feared the city won't be able to stop the powerhouse team of Jacobs and Stark.

But no matter what city officials said at meetings, Henneberry always responded with a smile and a pledge to keep working on the project.

''They didn't get where they're at today by being dissuaded,'' said Graczyk. ''They're not in it for the short haul. They're in it for the long haul. I think they've been around long enough to know they're just going to have to keep plugging away.''

Indeed, The Jacobs Group has a history of getting the job done. They've developed 40 shopping malls across the country -- including Midway Mall in Elyria, Southpark Center in Strongsville, The Galleria in downtown Cleveland and Westgate Mall in Fairview Park. Two more malls are currently on the drawing board for North Carolina and Florida.

That kind of clout has some Avon residents worried some form of the project will be built no matter what city officials say or do.

''You can't beat money,'' said Stoney Road resident Joe Tramontane after a previous Planning Commission meeting. ''Money talks.''

Henneberry -- Jacobs' right-hand man for the Avon project -- insisted the key is persistence and cooperation.

''I think the size of the project is intimidating to some people both in the community and the elected officials,'' he said. ''We'll just continue to answer their concerns and their questions. I think there's a lot of positives. We've been getting some input from the community.''

The current plan, according to Henneberry, is to collect more information on the potential traffic impact of the development to present to council in April. The rezoning of the land will be put to voters in November, he said.

If the rezoning is not approved, Henneberry said he is not sure what his team will do with the 222 acres.

''We're still working on that,'' he said. ''I'm not really ready to talk about it yet.'' ...

In addition to the Stark/Jacobs project, developer Mitchell Schneider has proposed the 85-acre Avon Commons shopping center. Schneider's plans were defeated last November -- with the help of a $50,000 campaign waged by Jacobs and Stark -- but will be given another chance at a special June 1 [1999] election. ..."


"AVON - Attorney Gerald Phillips filed a notice of protest with the Lorain County Board of Elections this week claiming the petitions collected to put the Avon Commons shopping center back on the ballot were improperly validated ...

Avon resident Bob Barnhart ... said he and his committee were as careful as possible to follow proper procedure.

Avon Commons developer Mitchell Schneider said he's come to expect such protests from Phillips. "I'm not surprised that Mr. Phillips is making yet another attempt to throw as may allegations out there as possible in his campaign to prevent any development on the property ..."

Though a protest hearing has not been scheduled yet by the elections board, both Phillips and Schneider said the complaint will not delay the election ..."


"Board to review Avon election

AVON -- The Lorain County Board of Elections will hold a hearing to decide whether the June 1 special election for the Avon Commons shopping center will go forward.

While no date has been set to resolve the debate over the validity of the petitions that forced the election, Lorain County Prosecutor Greg White's office said yesterday that a hearing will definitely be held.

''I'm sure we will have a hearing of some sort,'' said Jerry Innes, a chief assistant prosecutor who advises the elections board. ''It's just that because of so many people being involved, I think we're going to have to meet and establish some ground rules before we actually have a hearing.''

The election came into question after attorney Gerald Phillips filed a notice of protest with the elections board claiming not enough valid signatures were collected to force another vote for the Detroit Road shopping center.

Phillips claimed some signatures were duplicates, some were from newly registered voters, and at least one was from someone who claims to never have signed the petition.

Avon resident Bob Barnhart, who coordinated the petition drive, said yesterday he is confident the election will go forward. Only 1,959 signatures were needed, and Barnhart submitted 2,379.

''He's seeking to find something wrong. I'm going to bet that he doesn't,'' Barnhart said. ''But Mr. Phillips is welcome to register whatever complaints he feels he has.''

Barnhart conceded that some errors may have been made, but said he doubts enough mistakes will be found to cancel out the more than 400 extra signatures his group collected.

''We had 30 some people working on this so I could see where there could be some duplications,'' he said. ''Because we had a buffer of 400 signatures, I find it difficult to think there's that many duplications.''

Phillips, however, said Barnhart's buffer is technically only 81 signatures. After checking the petitions, Phillips said he found a sufficient number of invalid signatures to cancel the election.

If the election proceeds as scheduled, Avon residents will vote on a zoning change needed for the original 85-acre Avon Commons project. As the land is currently zoned, only stores smaller than 20,000 square feet can be built there. Avon Commons includes several superstores bigger than 80,000 square feet.

Developer Mitchell Schneider said he plans to develop the Detroit Road land with a series of smaller projects if Avon Commons does not succeed, but Barnhart has argued that Avon Commons is a better plan because it includes more perks such as traffic improvements, tax dollars and features such as a summer concert area and recreational pathway. ..."

LETTER TO THE EDITOR, submitted by Mitchell Schneider
(An edited version of this letter appeared in the Chronicle - Telegram on 4-4-99.)


First Interstate's Schneider Files Counterclaims Against Phillips

Despite allegations by local attorney and Avon Commons' opponent Gerald Phillips, First Interstate Development Company ("First Interstate") has conformed with all requirements of federal and state law regarding "wetlands" at the 85 acre Avon Commons and Avon Business Park Development site.

In this regard, an Army Corps of Engineers Permit was issued to First Interstate on March 20, 1998. First Interstate's activities in the filling of 2.77 acres of wetlands at the Avon Commons site have conformed to the terms of that Army Corps Permit.

Under the Permit, the wetlands could be filled provided First Interstate acquired replacement acreage. First Interstate, in fact, obtained the replacement acreage required under its Army Corps Permit through the Sandy Ridge Wetlands Mitigation Bank in North Ridgeville. Indeed, the amount of replacement acreage purchased by First Interstate (consisting of seven acres) was more than twice the amount of the acreage it filled at the Avon Commons site.

In the past, First Interstate has received a number of awards pertaining to its projects, including the Environmental Improvement Award, presented to First Interstate in March 1999 for its environmental sensitivity in developing Creekside Commons Shopping Center in Mentor, Ohio.

At the crux of the misstatements of fact by Gerald Phillips is a fundamental misunderstanding of the difference between "jurisdictional waters" and "wetlands."

When First Interstate presented its initial delineation of wetlands for Avon Commons, it did not include a 0.11 acre pond, because it was not a wetland. After complaints by Attorney Phillips and local resident Linda Eadelis, the 0.11 acre pond on the Bennett Parcel of the Avon Business Park site was included in the jurisdiction of the Army Corps of Engineers as "jurisdictional waters." Such a designation, however, as a matter of law, was not a designation that the 0.11 acre pond was a "wetland."

Indeed, in a July 15, 1998 letter from the Army Corps of Engineers to First Interstate, it was stated that the 0.11 acre pond was to be included in the jurisdiction of the Army Corps as jurisdictional waters. In so stating the Army Corps did not, however, conclude that the pond was a "wetland." Accordingly, in contrast to Attorney Gerald Phillips' allegations, there were never "wetlands" on the Avon Business Park site.

Another area of misstatement by Attorney Gerald Phillips relates to the legal effectiveness of the Army Corps Permit issued to First Interstate to re-establish drainage and fill wetlands on the 85-acre Avon Commons property. Specifically, Attorney Phillips states that the Permit has expired.

In accordance with its Army Corps Permit and prior to December 13, 1998, First Interstate graded the 2.77 acres of wetlands originally permitted by the Army Corps of Engineers on the Avon Commons site to reestablish drainage on the parcel.

The 0.11 acre pond of jurisdictional waters on the Avon Business Park site was filled by First Interstate, with knowledge and approval of the Army Corps of Engineers, in early February, 1999, after the Avon Planning Commission approved the final site plan of Avon Business Park. First Interstate's conduct in this regard conformed to its Army Corps Permit in all respects.

The activity of First Interstate conducted in December, 1998 and February, 1999 were within its Permit conditions, as the Permit was extended by the Army Corps of Engineers until at least September 15, 1999. Moreover, First Interstate's commencement of work in December, 1998 extended the permit, by its own terms, for at least an additional one year.

In June of 1998, the City of Avon also issued a clearing and grading Permit to First Interstate with respect to these grading activities. The Permit remained effective for a period of not less than six months, or until December, 1998. Pursuant to the express terms of the Permit and the Codified Ordinances of the City of Avon, construction activity at the site would automatically extend the permit for an additional six month period, because "construction activity" would have taken place within the initial period.

First Interstate met this "construction activity" requirement by clearing several acres of the site in anticipation of its Family Fun Day event just prior to the November election, thus extending the Permit's effectiveness until at least May, 1999. Additional clearing and grading activity was conducted in February of 1999 pursuant to this Permit and after receiving approval for the Avon Business Park from the Avon Planning Commission.

Attorney Gerald Phillips, representing adjacent residents, as well as himself and his wife, together with Attorney Timothy Grendell, representing Gerald and Maureen Phillips only, filed a Complaint on February 23, 1999 in the Lorain County Commons Pleas Court pertaining to Avon Business Park only. This Complaint concludes WITHOUT factual support that First Interstate acted improperly.

First Interstate, via its attorneys, Richard D. Panza and Matthew W. Nakon of Lorain, responded to the Complaint on March 25, 1999 by denying many of the allegations made by Attorneys Phillips and Grendell. First Interstate also filed a motion seeking to remove Phillips and Grendell from representing the residents. The motion claimed that Gerald Phillips could not conform to the requirements of the Code of Professional Responsibility for Ohio attorneys in representing the adjacent residents because Attorney Phillips was acting as both an attorney and as a fact witness in the case.

In addition, the motion claimed that Timothy Grendell's firm could not represent Gerald Phillips because Mr. Grendell's partner, Steve Targove, had appeared as an expert witness on Phillips' behalf at the February 25, 1998 Board of Zoning Appeals meeting. Disciplinary Rule 5-101(B) of the Code of Professional Responsibility provides in part: "A lawyer shall not accept employment in contemplation of pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness."

In addition, First Interstate filed a four count counterclaim against Attorney Gerald Phillips:

In addition, First Interstate's Answer in the lawsuit includes a cross-claim against the City of Avon alleging that its wetlands ordinance is unenforceable. Prior to filing the cross-claim, First Interstate attorney Sheldon Berns had forwarded a March 8, 1999 letter to Attorney Daniel Stringer, the Law Director for the City of Avon, requesting the City to reconsider the wetlands ordinance.

The letter, while suggesting that First Interstate valued its relationship with the City of Avon, stated that First Interstate nonetheless believed Chapter 1228 (the wetlands ordinance) to be invalid and unenforceable because

First Interstate's cross-claim against the City of Avon similarly argues that the ordinance is unconstitutional and is overridden by the Ohio Revised Code plan for wetlands because wetlands are comprehensively regulated by the State of Ohio and the Federal Government.

In fact, on June 15, 1998, the Avon City Council discussed the current wetlands ordinance on the books in the City of Avon. The ordinance provides that any area containing wetlands within the City of Avon, no matter how large or small, can not be disturbed by any development under any circumstances.

At the June 15, 1998 meeting, Attorney Daniel Stringer, Law Director for the City of Avon, commented regarding the ordinance saying: "We're involved in a taking situation of wetlands that exists on some property somebody wants to develop. That's the problem with the present ordinance today as I see it." The June 15 meeting concluded with Council agreeing to study the ordinance further in order to find ways to correct its overreaching."

Newspaper Record of Stark/Jacobs in Avon

More Documents Relating to the June 8, 1998, Decision Against Avon


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