UPDATE: Court Denies All Injunction Requests to Stop Wells Sherman House
Magistrate's order issued Wednesday, made public today
A Portage County magistrate has ruled that several requests for an injunction to stop the relocation of the Kent Wells Sherman House to 247 N. Water St. have all been denied by the court.
Portage County magistrate Kent Graham issued his ruling in the case Wednesday, and the order became public for the first time this afternoon, essentially allowing the relocation of the house to the vacant lot between the Scribbles Coffee building and the Standing Rock Cultural Arts gallery.
Kent residents under the banner Save the Standing Rock Garden filed requests for injunctions last month against the Kent Architectural Review Board, Kent Planning Commission and the Kent Wells Sherman House, Inc., board to try and stop the relocation of the historic house.
"Upon review and considerations of the motions, pleadings, verified complaint, and affidavit filed herein and the trial testimony and exhibits, the magistrate finds that plaintiffs have not established the elements necessary to grant preliminary injunctions," Graham wrote. "Consequently, plaintiffs' motion for preliminary injunctions against Wells-Sherman and Kent City's Architectural Review Board and Planning Commission cannot be granted."
Portage County Common Pleas Judge John Enlow, for whom Graham serves as magistrate, signed off on the ruling Wednesday.
In his ruling, Graham explained the four criteria the request of the plaintiff, in this case members of Save the Standing Rock Garden, would have to meet in order for the court to grant an injunction — essentially a court order prohibiting an action.
- Whether there is a substantial likelihood that the plaintiff will prevail on the merits of the case
- Whether the plaintiff will suffer irreparable injury if the injunction is not granted
- Whether third parties will be unjustifiably harmed if the injunction is granted
- Whether the public good will be served by the injunction
3 injunction requests
In reviewing the case, Graham had to rule on three basic requests for a preliminary injunction.
The first request for an injunction by members of Save the Standing Rock Garden was to stop the Kent Wells Sherman House group from disturbing the lot at 247 N. Water St., which the non-profit group owns, or placing any equipment or structures on the property.
Graham ruled that the injunction request failed to meet any of those four criteria and was dismissed on those grounds.
"Plaintiffs have no ownership ... no legitimate claim, and no express permission to exclude Wells-Sherman from improving its lot," the magistrate's ruling states.
Architecture board meeting
Members of Save the Standing Rock Garden also sought an injunction against the Kent Architectural Review Board regarding a meeting in September that addressed the issue.
John Plough, the Kent attorney representing the group, argued the city violated Ohio public meetings laws by not appropriately advertising the architecture board meeting to the public. The architecture board's decision to grant the project a certificate of appropriateness was then considered by the planning commission when it voted in September to approve a site plan for the project.
Had Graham determined the city did not properly advertise the meeting, Plough argued the architecture board decision should have been thrown out.
However, in his ruling the magistrate wrote that Plough's argument appeared to be based on the requirements for advertising special meetings and not regularly scheduled meetings.
"These meetings were regular meetings, not special meetings. So advance notice to news media was not required," Graham wrote. "In spite of this, the architectural review board informed local news media before the meeting.
"Kent city has established a reasonable method to inform the public of the architectural review board's regular meetings," the magistrate's ruling states. "The meeting schedule was properly posted, pursuant to Kent (ordinance)" and state regulations.
Planning commission decision
Plough also argued for an injunction against the planning commission for having taken action twice within one year's time on a site plan for the project "without establishing newly discovered evidence of proof of changed conditions."
Graham determined that the two site plans considered by the commission — one first with the house set back 15 feet from the sidewalk and a second with the house set back 16 inches — were materially different and therefore the commission's actions were appropriate.
"The setback proposed in the second application was a material alteration from the first application," Graham wrote.
Timeline for move unclear
It's unclear if members of Save the Standing Rock Garden will appeal the magistrate's decision.
Lisa Regula Meyer, the first plaintiff named in the case, could not be reached for comment Thursday.
Kent Community Development Department Director Bridget Susel said she believed the city followed all state and local laws regarding the actions of the planning commission and architecture board.
"I was very confident that it had been handled properly," Susel said.
The house remains in its temporary spot at the dead end of East College Avenue, land owned by Kent State University, where it was moved in August.
The Kent Wells Sherman House group had been given a deadline by city and university officials to move it from there by Dec. 1 or it would be demolished so as not to interfere with the operations of city snow plows.
Kent State spokesperson Emily Vincent said previously the university would not decide on razing the house until after the magistrate's decision.
"It is our hope that we can move forward with the transaction and relocation of the house," Vincent said. "Details still need to be worked out."
The Kent Wells Sherman House group also needs a final permit from the city to build the foundation on the North Water Street lot for the house, and that permit remains in the technical review process.
And the group also would have to obtain the necessary approvals to move the house in the public right of way and address any obstacles to the physical move — such as traffic lights — from where it sits on East College Avenue to the North Water Street site.
Add to all that red tape the fact that winter weather could slow any site construction and seeing the house move before January appears unlikely.
Roger Thurman, vice president of the Kent Wells Sherman House Inc. board, said previously he would like to work with Standing Rock Cultural Arts in the future to use the space cooperatively once the house is restored.
"Standing Rock technically was not party to the suit, but of course their supporters were," Thurman said. "We just want to do our project and have people give us a chance to see what our building can do for that side of town."
Christine
2:53 pm on Thursday, December 6, 2012
Ridiculous...does this mean Kent loses another historic home?
Matt Fredmonsky
3:01 pm on Thursday, December 6, 2012
By denying the injunction requests, which would have stopped the relocation, the magistrate has essentially said that the house can be moved to the green space at 247 N. Water St. between Scribbles and Standing Rock Cultural Arts.
Megyn Marie Kelly
3:07 pm on Thursday, December 6, 2012
A win for property owners!! Yay! I wouldn't dare tell my neighbor what to do with his yard. Most patriotic citizens of Kent that I talked to have been all for the move and relocation. Glad the move to North Water is imminent and also Kudos to KSU for not giving in to playing the "run the clock" game that "Save the Standing Rock Garden" was so desperately trying to play. Also turns out all that talk about the Sunshine Laws was irrelevant as most people already knew. Seems all the cards Standing Rock was playing turned out to be irrelevant. This really is a long term win/win for the community at large.
T
5:13 pm on Thursday, December 6, 2012
I'm not sure which Standing Rock you are referring to but I want to be clear that Standing Rock Cultural Arts (often called Standing Rock) was never part of this suit nor were any of its members and its Executive Director appeared in court under subpoena. Save the Standing Rock Garden was one of the plaintiffs. The SRCA board members voted against participating in the case in September.
Sue JEffers
11:36 pm on Thursday, December 6, 2012
The purpose of zoning laws is to regulate what can be done with properties within the boundaries of a shared community. If your neighbors decided to install a pig farm and a whorehouse I imagine your private property fetish might disappear. There are many things that I am prohibited from doing with my property that I own. The notion that it is "patriotic" to want to place an old rental property that used to be owned by some rich people a long time ago in a place that architecturally it does not match, in a process that violated city regulations and laws is ludicrous. It is not at all a win for the city, as it simply sets the precedent that if you have connections and buddies in the council you can ignore the city code and ram things thru in contradiction of legal processes. This as much more with the destruction and gentrification of n. water street than saving a house no one thought to save from college rental hell until the university decided to destroy the neighborhood it used to sit in. just another black eye in the whole downtown gentrification process.
Jon Ridinger
12:49 am on Friday, December 7, 2012
The movement of the house in no way violates the zoning laws of the area (it is zoned dense residential-commercial) like a pig farm clearly would. People who support private property rights fully understand what zoning is and how it affects what they can and cannot do. When people who have absolutely no legitimate claim to a property try to stop other people from doing something perfectly legal and within the bounds of law, that's when we have issues. Zoning does not mean neighbors have a say over everything that goes on in someone else's property.
As for "architecturally not fitting in", until the 1970s, a house very similar to the Wells-Sherman house stood on that very lot. There are other pitched-roof buildings right on N. Water within view of the site. Considering there are homes not even a block north of the SRCA building, it's hardly out of place to have a house there that looks like the Wells-Sherman house. It's not like we're dropping a house from Riverbend onto North Water Street. In fact, this house was originally just a few blocks south, on the corner of S. Water and E. Erie before it was moved to its location further down E. Erie.
Misty Jones
8:46 am on Friday, December 7, 2012
Since other crows need to beat a dead horse, I might as well too. The land is zoned downtown district not residential and please tell me what line private property buyers should get in to get $55,000 of taxpayer money thrown at them with no payback of $45,000 and no need for collateral or a financial history for the other $15,000. I want in on that deal! And who owned that land again when the ARB and PC made decisions and when the appeal was filed? Wasn't KWSH. They bought 10/19 after they knew an appeal was filed and continued the same underhanded chess game. And, yeah, check the ARB guidelines that Fink denied existed and you'll note the property does not fit the criteria between those two buildings. There are even illustrations to help anyone without reading comprehension.
Mr Confederate Man
3:24 pm on Thursday, December 6, 2012
Enough about this dang house already........move it and get it over with.
Crystal Yonker
3:30 pm on Thursday, December 6, 2012
Not a win for us :( My daughter will miss that space.
Tom Simpson
4:25 pm on Thursday, December 6, 2012
I heard there is a group of rare purple & yellow toads living underground in that garden!
Sue JEffers
11:10 am on Friday, December 7, 2012
well what i heard was an endangered species of blue and orange snakes ate all the toads
Mr Confederate Man
10:57 pm on Friday, December 7, 2012
LOL Tom.
Fred Pierre
5:47 pm on Thursday, December 6, 2012
Thanks Tom! You made me laugh instead of crying. Keep up the good work!
Sue
9:05 pm on Thursday, December 6, 2012
This is obviously the right decision. It is true that, as the ruling states, "Plaintiffs have no ownership ... no legitimate claim, and no express permission to exclude Wells-Sherman from improving its lot." I look forward to seeing the house moved to its new location. I hope the folks who used and tended the land for so many years with such care can continue to use the land around the house and perhaps the house itself. And I hope that folks can heal from all the bitterness that this has generated. The people on both sides of this dispute are good people. I hope there can be reconciliation.
louislinus
8:26 am on Friday, December 7, 2012
What saddens me is that this "war" is between two groups whose memebers probably have more similarities than differences. I'm sure on many issues they would be on the same side. I know how important the lot is to SRCA and I'm sad for their community that this space is going to be different for them. However, KWSH has done nothing illegal or immoral. SRCA had no "right of first refusal" to that space (to my knowledge which albeit is next to nothing.) I believe KWSH has offered the house and yard for SRCA's use. So now we have so spin this and think about all the new and different things that SRCA can do with the house. Yes, it's going to look different than what past programs on that lot have looked like but different doesn't have to be bad. Maybe some new great thing will be possible for SRCA at the house that wasn't possible without the house. I hope these two groups can come together in peace and use their powers for good.
Sue JEffers
11:19 am on Friday, December 7, 2012
the process in which this came about was sketchy at best. i imagine it will take some active conciliatory gestures from those who used their positions of power in town to force this result before there is any possibility of a trusting relationship;
Pam
8:42 am on Friday, December 7, 2012
I live just up the street from the new location of the Wells Sherman House. I am THRILLED that such an historic home will now grace our neighborhood. Thank you!
Misty Jones
8:59 am on Friday, December 7, 2012
More things the magistrate indicated in his decision according to the online scan on the court site were that two ARB board members involved with the project did violate their own ordinance by speaking before recusing themselves from the vote (Banker Boyle even voted before stepping back to recuse himself on record audio transcript). The magistrate just determined that the other 3 would vote the same despite this influence.
He also denied Fink's argument that Kent is not required to follow sunshine law which appears in Kent's own charter that Fink argued protected them from state law. He just determined that limited access to the meeting info is reasonable. He also essentially determined that even if/though codes were broken by the plan commission, there was a precedent of that so it was okay (but that one's paraphrasing of course). And he weighed heavily on ownership that happened after the appeal was filed. Yeah, Kent totally doesn't have egg on its face. Give me a break.
Sue JEffers
9:58 am on Friday, December 7, 2012
if the house is turned into a homeless shelter i might be convinced that it has anything to do with community or improvement. or perhaps kent's homeless can sleep under the eaves of one of the new fast food joints in our new downtown strip mall
Matt Fredmonsky
10:01 am on Friday, December 7, 2012
A comment was removed for violating Patch's terms of use. http://kent.patch.com/terms
Misty Jones
10:43 am on Friday, December 7, 2012
Oh, you can remove a comment about someone not knowing anything about the people they are putting down that say the people they are insulting don't support any real causes (like hunger, homelessness, ending wars) and how hypocritical it would be to say that if the poster doesn't do these things but you can allow that poster's comment saying offensive things about the plaintiffs. Classy, Patch. Try some fair guidelines that apply to ALL.
Roger Thurman
12:16 pm on Friday, December 7, 2012
Kent State is paying to move the house which, we have been told, is the same or less than tearing it down. Otherwise, KWSH funding is all borrowed money and donations, not taxpayer funds. We closed on the property Oct. 19; the legal case was filed on Nov. 2. We did not know about legal threats when we bought the property but were following reasonable steps in the wake of the favorable decision from the Planning Commission. The purchase process began in early October and closed on the 19th. Our plans to share the main floor with the public-at-large remain in place although the delays have increased costs and altered our timetable. At greater expense we are creating a platform at the rear door to allow for wider public usage and occasional outdoor performances. Despite the expensive legal war waged by SRCA supporters we still intend to find ways to cooperate with our immediate neighbors, SRCA and Scribbles. There is also a new storefront church which has opened nearby and perhaps they could find some occasional use of our main floor facility when it is completed.
Misty Jones
2:44 pm on Friday, December 7, 2012
Appeal filed 10/7 or 10/9 not 11/2 and was reported in Patch which won't allow the link to be included here.
Roger Thurman
4:07 pm on Friday, December 7, 2012
MIsty: Yes, there was a filing on Oct. 9, 2012 reported by Patch but KWSH was not mentioned and therefore not involved. The 11/2 filing brought us in. In any event the purchase of 247 N. Water began Oct 1 or 2 and took almost three weeks to close because the title company was way behind on title searches.
Michael Pacifico
1:14 pm on Friday, December 7, 2012
The decision has been made so people ought to figure out how to accomidate themselves to the new reality. While I understand SRCA's position, it was primarily their lack of foresight that cuased them to lose the place. Did they honeslty think that they could get a free ride forever? That, with the town changing as it has for the last few years that, maybe someone or some group would purchase the land? Did you ever make an effort to purchase the land and garner public support for such an effort, Did you ever fully imagine or even inform the public of your vision for this land? Or did you just react? As a resident of Kent for over 40 years and a supporter of the greater mission of Standing Rock, I have seen the land used in many ways, from Vince Packard's amazing display of endangered species art to an overgrown weed pit to party central. I really think that if SRCA had made it a major part of their agenda and had solicited support from the entire Kent community before the land was purchased they could have secured the land for themselves. But they didn't.
Matt Fredmonsky
2:27 pm on Friday, December 7, 2012
Comments were removed for violating Patch's terms of use. http://kent.patch.com/terms
Resident of Kent
11:48 am on Saturday, December 8, 2012
I think this was MY comment. Okay kiddies let's look closely and SEE what rule my COMMENTS violate:
The real worry the residents at the SRCA building need to SEE is that once the house in there, the owners will want the SRCA building to come up to CODE NOW - or else be demolished FOR A PARKING LOT. Mark my words, sadly but this may truly happen!!!
T
1:52 pm on Saturday, December 8, 2012
This is the real point that gets missed. Cultural Arts has never been about a building. The only thing that happens in a building is gallery exhibitions, whatever gallery events are planned, and storage. All but the exhibitions can happen anywhere. Cultural Arts is about community, about people, the very thing everyone has missed in this whole issue. This comment from Resident of Kent adds absolutely nothing but negativity to the discussion and is not helpful to any dialogue. Raze the building. Make a parking lot. You cannot stop the heart of the arts community unless it wants to stop. Artists know they can continue anywhere they are. Art is always with them.
Mars
1:55 pm on Saturday, December 8, 2012
They paved paradise and put up a parking lot...
Mars
1:56 pm on Saturday, December 8, 2012
Tina, that's the best thing I've read in days. Thank you.
Joseph Hughes
3:10 pm on Friday, December 7, 2012
Matt, you can delete all the comments you want, but the record is the record. You were at those meetings. You heard the two sides and what they had to say and how they said it.
Matt Fredmonsky
3:14 pm on Friday, December 7, 2012
i'm just trying to keep us on the issues and avoid personal attacks on other readers.
Joseph Hughes
3:20 pm on Friday, December 7, 2012
How about personal attacks on entire groups? Seems you're more lax on those.
i love doughnuts
3:37 pm on Friday, December 7, 2012
oh, snap!
T
3:43 pm on Friday, December 7, 2012
I do not understand the reason for the attacks on SRCA here or direct questions leveled at SRCA (already answered months ago) when SRCA has not been a part of this since the September 4, 2012 Planning Commission decision. I reiterate again that the SRCA board voted against taking or participating in any legal action in September 2012 when the option for appeal was discussed. The issue was laid to rest for us once the land was no longer available (September 4, 2012 per Planning Commission approval) and it would be great if people would stop attempting to provoke SRCA or its supporters or anyone for that matter.
If Patch wasn't so interested in the web traffic being generated and was truly interested in avoiding drama and personal attacks, the comments on this would have been shut down a while ago like many other newspapers do because clearly it continues to be a hot topic and is only generating additional angst and frustration on the parts of all of the groups involved. If the groups want peace, their members will learn to have some graceful silence in the press as well.
Michael Pacifico
3:46 pm on Friday, December 7, 2012
Differences of opinions on the actions of various groups is not at all equivalent to attacking an individual who is expressing an opinion about that group. You may disagree with that opinion and therefore you should express why you disagree with it. Sounds like simple rules to follow.
T
4:48 pm on Friday, December 7, 2012
I'm not sure if this is in regards to my comment or the one Joseph Hughes made but my response was based on a comment by an anonymous poster that has since been removed.
As for questions, debates, etc., the point I forgot to make clear in my comment although I believe it was there is that basically it does not really matter and is a waste of energy and time and adds to everyone's frustration that the issue continues to be raised because the issue came to an end. For SRCA, that was months ago in September. For everyone else involved, it came to an end in the last day or two. It's just pointless to keep asking questions and pointing fingers. Many of the people involved in this have had the grace or diplomacy to just remain silent in the press and I believe that's the best way for peace to be allowed to take its course unhindered. Ultimately, if someone has a "difference" with peace and letting the past go, I think that's their issue, not SRCA's nor mine.
Sue
8:20 pm on Friday, December 7, 2012
Thank you, Roger, for clarifying the process you used. I support the move of the house. I suspect most Kent residents do. I look forward to this historic house being on its new and permanent site.
Mars
10:54 am on Saturday, December 8, 2012
Obviously "most" residents do not or none of this would have ever happened...
Mr Confederate Man
11:11 pm on Friday, December 7, 2012
So whats the big deal with this house? I dont understand why this is such a big deal. Is the house safe?
Sue
9:30 pm on Saturday, December 8, 2012
Alec, the people who have raised their voices to oppose the move of the house are certainly passionate about it, but they are not most Kent residents. They are a vocal small group of residents. I admire their willingness to stand up for what they believe, even though I disagree with them on this issue. But they are not most people in the city. Most Kent residents have said nothing in public about the move of the house. I know many Kent residents who feel as I do, that the move of the house to the site will benefit the city. I think the move of the house can benefit SRCA also if they use the house and the grounds around it for community events and activities.