Economic Development

Complaint Questions Law Allowing TJX Referendum

YOUNGSTOWN, Ohio – Supporters of efforts to encourage TJX Companies Inc. to build a $160 million regional distribution center in Lordstown appeared confident Wednesday the project would move forward.

That optimism was despite a complaint filed Wednesday in Trumbull County Common Pleas Court ito declare unconstitutional parts of legislation passed by the Ohio General Assembly in May that permitted Tuesday’s accelerated referendum on seven zoning changes in the village.

Akron attorney David Nichol filed the complaint on behalf of the Committee of Lordstown Citizens and its treasurer, Lordstown resident Brett Dickson.

“I’m a little disappointed, but people have a right to do what they do,” U.S. Rep. Tim Ryan, D-13 Ohio, who supported the zone changes, said Wednesday. “As far as I know, we’re still moving forward.”

Lordstown village solicitor Paul Dutton said the village, which is one of two defendants in the complaint, received a courtesy copy of the filing from Nichol. The state of Ohio also is named as a defendant.

Lordstown voters cast ballots Tuesday upholding by at least 76.8% of the vote each of the zone changes from R-1 Residential to I-1 Industrial of seven parcels of land totaling nearly 300 acres where TJX Companies Inc. intends to build a 1.2-million-square-foot distribution center. The warehouse is expected to create 1,000 jobs when fully up and running.

In June, Village Council has approved the rezoning on a series of 3-2 votes, with Councilman Ron Radtka, whose family owns some of the property where TJX plans to build, abstaining.

The complaint charges that sections 12 and 16 of House Bill 292, which was amended to allow the referendum to take place this summer rather than in November, run afoul of two sections of the state constitution: Article II, Section 15(D), which requires that every piece of legislation to address only a single subject and a single purpose, and Article II, Section 26, the uniformity clause.

Section 12, which was enacted earlier this year, allowed the village, between May 15 and Sept. 1, when considering an ordnance that would make zoning or other changes to real property that would likely bring at least 500 new jobs and $50 million in investment, to allow a member of the village legislative authority who is present but abstains from voting to allow his seat not to be counted for the purpose of passing the ordinance. Section 16 of the bill put Section 12 into effect immediately.

A bill can only have a rider that in some way is pertinent to the title of the bill, Dickson said in an email Wednesday. H.B. 292 started as a bill dealing with taxation, he said. In addition, the uniformity clause calls for provisions of legislation to be enacted for the entire state, whereas Sections 12 and 16 “define an applicability so narrow as to apply only to Lordstown and the TJX project and only for a brief time,” he said.

Before H.B. 292’s passage, four votes from Council were required to pass a recommendation from the planning commission, with the legislation changing that to three votes.

“If we prevail, we seek to reverse that passage by striking H.B. 292 Section 12 and 16 out of the [Ohio Revised Code] due to its unconstitutionality,” Dickson said.

The filing seeks to declare as unconstitutional Sections 12 and 16, to determine them to be “void and unenforceable,” to enjoin the village and the state from enforcing them, and to grant other relief the court deems “equitable and just.” A hearing on the temporary restraining order sought by the committee before Judge Peter Kontos is scheduled for 1:30 p.m. Friday.

Ryan said he thinks TJX anticipated something like this happening. The results of Tuesday’s vote “speak volumes about where the vast majority of the community is,” he said.

The village will “defend the efficacy of the vote taken in council as it pertains to the vacancy” caused by Radtka’s abstention, Dutton said. The attorney expects the Ohio Attorney General’s office to take the lead on the constitutionality of the legislation.

The village will also ask plaintiffs to post a bond to cover damages that would occur because of delays to the project. “If in fact the court grants the TRO, we would assume the court would require the petitioners to post a significant bond,” he said.

State Sen. Sean O’Brien, D-32 Bazetta, who championed the amendment to the state legislation, said the legislation was heard by both the Ohio House of Representatives and the Ohio Senate and he doesn’t believe it violates the single purpose or uniformity clauses.

“I’m optimistic on our chances in court,” O’Brien said.

Molly Johnson, an attorney representing Harvey Lutz and his family, who have optioned 212 acres to TJX, said Tuesday’s election results were an example of democracy at work.

“There is no greater example of democracy than an open vote to the entire community. It passed overwhelmingly,” she said. If opponents had an issue with the process, the time to enjoin the referendum was before the election, not after it.

“Nonetheless, we remain optimistic and hope that the project will go forward,” she said.

She also expressed her clients’ appreciation toward TJX for hanging in “longer than anyone I know would have” for the project. “They have been wonderful partners, not just toward my clients with respect to getting the property developed but also toward the entire community,” she said.

Published by The Business Journal, Youngstown, Ohio.