Center for Powell Crossing, LLC v. City of Powell (173 F. Supp. 3d 639, 2016)

Opinion and Order s

JAMES L. GRAHAM, United States District Judge

This case presents many complex legal issues relating to the approval by popular vote of an amendment to the Charter of the City of Powell, Ohio in November 2014. The Charter Amendment requires that a commission of five prívate citizens be organized to draft a new comprehensive zoning and development plan, which at a minimum would prohibit high-density housing in the City’s Downtown Business District. The Charter Amendment further provides that the new comprehensive plan will not allow a mixed-use development project proposed by plaintiff The Center for Powell Crossing, LLC. Powell City Council had passed an ordinance approving of Powell Crossing’s development plan, which included apartment units, in June 2014.

,The matter is before the court on the motion .of Powell Crossing for a permanent injunction against the enforcement of the Charter Amendment. Powell Crossing argues that the enactment of the Charter Amendment violates due process, subjects it to unequal protection under the law and violates a provision of the Ohio Constitution confining the use of initiative and referendum powers to legislative, as opposed to administrative, actions.

For the reasons set forth below, the court concludes that Powell Crossing, while not entitled to judgment in its favor as to many of its claims, is entitled to judgment as a matter of law as to one of its due process claims and as to its state constitutional claim. The court thus grants permanent injunctive relief against the enforcement of the Charter Amendment.

I. Findings of Fact

The facts are not disputed. The verified complaint states that Powell Crossing is a limited liability company organized under the laws of Ohio. It purchased an 8.3 acre tract of land located at 147 West Olentan-gy Street in Powell, Ohio on January 2, 2013 for $575,000. The land is undeveloped, except for an existing historic structure, and lies within the City’s zoned Downtown Business District.

In August 2013, Powell Crossing submitted an initial design plan for mixed-use development of its property to the City of Powell’s Planning and Zoning Commission. The proposed development, named the Center at Powell Crossing, included sixty-four units of multi-family dwellings and 14,000 square feet of retail space. After receiving positive feedback from the Commission, Powell Crossing filed an Application for Preliminary Development Plan in October 2013. The Commission unanimously approved the Preliminary Plan Application at its November 13, 2013 public meeting.

On December 31, 2013, Powell Crossing submitted an Application for Final Development Plan with the City. Both the. City’s Development Staff and the Commission recommended their approval of the Application at the Commission’s February 12, 2014 public meeting.

The Final Plan Application was then sent to the Powell City Council. After five public meetings in which the Plan was considered, City Council approved the Application on June 17, 2014 by a vote of 4 to 3. City Council’s approval of the Final Plan Application was memorialized in Ordinance 2014-10, with'an effective date of July 17, 2014. See Compl., Ex. E.

No administrative appeal of City Council’s approval of the Final Plan Application was filed with the Delaware County Court of Common Pleas under Ohio Revised Code § 2506.01. '

On July 17, 2014, three residents of Powell — Brian Ebersole, Sharon Valvona and Thomas Happensack (the “Petitioners”) — filed three petitions with the Clerk of Powell’s City Council. The first was a petition to put Ordinance 2014-10 to a referendum. The second wás an initiative petition to pass an ordinance repealing Ordinance 2014-10. The third was an initiative petition to amend the Powell City Charter.

The proposed Charter Amendment concerned two matters: (1) creating a new comprehensive plan for zoning and development in the City and (2) revoking Ordinance 2014-10. As to the first matter, the Charter Amendment required that a commission comprised of five presidents of certain Powell-area homeowners associations be organized to make findings and draft a new Comprehensive Plan. See Charter Am., Art. 4, § 14. The Plan would then be submitted to City Council, which must consider the Plan, “make adjustments” necessary and consistent with the citizen commission’s findings and “pas's an ordinance no later than March 31, 2016 legislatively adopting a Final Comprehensive Plan”’ Id., Art. 4, § 18. In no event would the Plan allow “high-density housing,” which is defined to include multifamily dwellings. Id., Art. 4, § 19.

As to the second matter, the proposed Charter Amendment stated that “Ordinance 2014-10 approving a Final Development Plan for the Center of Powell Crossing LLC” is “not in the best interests of the people of the City of Powell.” Charter Am., Second and Third’ Whereas Clauses. It mandated that no action, including construction activity, be taken in reliance upon Ordinance 2014-10 or the Final Development Plan for the Center at Powell Crossing. Id., Uncodified ¶ 1. And it further provided’ that Ordinance 2014-10 would not be permitted under the Final Comprehensive Plan: “The Final Comprehensive Plan legislatively adopted pursuant to Section 18 of this Article IV shall not be compatible with Ordinance 2014-10 and/or the Final Development Plan for the Center at Powell Crossing.. .at 147 W. Olentangy Street.” Id., Art. 4, § 21. The Amendment thus would prevent Powell Crossing from developing its property in the manner approved by Ordinance 2014-10, both upon the passage of the Amendment and continuing with the enactment of a new comprehensive plan. The Amendment did provide, however, that Powell Crossing’s land would remain viable for “other uses,” meaning that Powell Crossing would be able to develop its land for all uses permissible under the zoning code other than high-density housing. See, id., Uncodified ¶ L

Powell Crossing filed notices of protest against the three petitions with the Delaware County Board of Elections. See O.R.C. § 3501.39. On August 1, 2014, the Board of Elections voted to validate a sufficient number of signatures .as to each petition, but opted to defer consideration of the grounds of the protests until they were first presented to City Council. The Board notified City Council of its action, and on the same day, August 1, Powell Crossing filed notices of protest with City Council.

Upon receiving notice from the Board of Elections, City Council drafted an ordinance, as required by law, to submit the proposed Charter Amendment to the voters on November 4, 2014. See Ohio Const., Art. XVTII, § 8. The ordinance (Ordinance 2014-41) received its first reading before City Council on August 5, 2014. At the same meeting, City Council voted to table resolutions regarding the referendum petition and the initiative petition to repeal Ordinance 2014-10 until its next meeting two weeks later.

On August 19, 2014,. City Council reviewed all three petitions at a public meeting. Through its legal counsel, Powell Crossing submitted legal briefing and made a statement in support of its protests at the public meeting. See Aug. 19, 2014 Meeting Tr. at 11-19. Upon concluding that the Board of Elections was the appropriate forum to consider Powell Crossing’s protests against the referendum and the initiative to repeal, City Council voted to approve resolutions to forward those measures to the Board. With respect to the Charter Amendment, 'City Council voted unanimously against submitting it to voters. In connection with their votes against adopting Ordinance 2014-41, several Council members acknowledged their reliance on the City Law Director’s opinion that the Charter Amendment was an unconstitutional and standardless delegation of City Council’s legislative authority to private citizens under City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). See Aug. 19, 2014 Meeting Tr. at 78-89.

On August 21, 2014, Powell Crossing again filed notices of protest with the Delaware County Board of Elections against the referendum and the initiative to repeal. After conducting a hearing on August 26, 2014, the Board voted unanimously to accept the protests. The Board determined that Ordinance 2014-10 was an administrative decision which, under Article II, Section If of the Ohio Constitution, was not subject to the exercise of referendum or initiative powers. The Board further found that the petitions failed to comply with the City Charter’s requirements and the Ohio Secretary of State’s required forms for municipal petitions and referenda.

The Petitioners filed a mandamus action against the Board of Elections in the Ohio Supreme Court to require the referendum and initiative to repeal to be placed on the November 2014 ballot. The Ohio Supreme Court denied the writ. Critical to the Ohio Supreme Court’s decision was its finding that City Council’s approval of the Final Development Plan was an administrative action:

By its terms, Article II, Section If, limits the referendum and initiative power to questions the municipality is “authorized by law to control by legislative action.” See Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864 (1971), paragraph one. of the syllabus. Because citizens of a municipality cannot exercise referendum powers greater than what the Constitution affords, an administrative action is beyond the scope of the referendum power. Buckeye Community [Hope Found. v. City of Cuyahoga Falls, 82 Ohio St.3d 539, 544, 697 N.E.2d 181 (Ohio 1998)].

The test for -determining whether an action is legislative or administrative is “whether the action taken is one enacting a law, ordinance, - or regulation, or executing a law, ordinance, or regulation already in existence.” Donnelly [v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (Ohio 1968)], at paragraph two of the syllabus. Thus, city ordinances that adopt final development plans pursuant ,to preexisting planned community development, without changing the zoning, are not subject to, referendum. State ex rel. Commt. for the Referendum of Ordinance No. 3844-02 v. Norris, 99 Ohio St.3d 336, 2003-Ohio-3887, 792 N.E.2d 186, ¶ 33.

The development authorized by Ordinance No. 2014-10 complied with the preexisting requirements for the Downtown Business District and for the Downtown District Overlay District and did not require any zoning changes.

[T]he board is correct that Ordinance No. 2014-10, because it approves development within the contours of a preexisting zoning code, is not subject to referendum or initiative.

State ex rel. Ebersole v. Delaware Cnty. Bd. of Elections (“Ebersole I”), 140 Ohio St.3d 487, 491-93, 20 N.E.3d 678, 684-85 (Ohio 2014) (per curiam).

Petitioners filed a separate mandamus action regarding the proposed Charter Amendment. The Ohio Supreme Court initially denied the writ, holding:

[T]he proposed charter amendment would be a “standardless delegation of power to a limited group of property owners.” Eastlake at 678, 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132. As explained above, undér the proposed charter amendment, a commission composed of five private citizens would be responsible for recommending a new comprehensive zoning and development plan to the city council. The city council would then be required to consider the recommendations and adopt a final plan. But the city council’s authority in this process would be sharply constrained by the findings of the five private citizens on the commission. Specifically, when adoptiñg a final plan, the city council would ■ be permitted to “make adjustments”' to the commission’s preliminary plan only to the extent that they are consistent with the commission’s findings at Phase I. And the proposed charter amendment does not set forth any standards to govern those findings. 'In short, the city council would be deprived of final decision-making authority over zoning matters.

State ex rel. Ebersole v. Powell (“Ebersole II”), 141 Ohio St.3d 9, 13-14, 21 N.E.3d 267, 271 (Ohio 2014) (per curiam).

However, on a motion for reconsideration, the Ohio Supreme Court granted the writ of mandamus with respect to placing thé Charter Amendment on the ballot. The Court held that City Council did not have authority to assess the constitutionality of the measure. State ex rel. Ebersole v. Powell (“Ebersole III”), 141 Ohio St.3d 17, 19, 21 N.E.3d 274, 276 (Ohio 2014) (“It is not the role of the city council to substitute its judgment for that of the voters as to which matters should appear on the ballot. Nor can the' city council assess the constitutionality of a proposal, because that role is reserved for the courts.”). The Court further held that the constitutional challenge was not ripe: “The proper time for an aggrieved party to challenge the constitutionality of the charter amendment is after the voters approve the measure, assuming they do so.” Id., 141 Ohio St.3d at 20, 21 N.E.3d at 277. Accordingly' the Court instructed the City of Powell to take the steps necessary to place the proposed Charter Amendment on the November 2014 ballot.

City Council then approved an Ordinance to place the Charter Amendment on the ballot and filed the measure with the Delaware County Board of Elections on October 8, 2014. On the same day, Powell Crossing filed a notice of protest with the Board. On the next day, Petitioners filed a complaint for a writ of prohibition before the Ohio Supreme Court to prevent the Board from hearing the protest. On October 10, the Supreme Court denied the request for a writ of prohibition and allowed the Board to conduct a hearing on the protest. But the Court granted a writ of mandamus ordering the Board to place the Charter Amendment measure on the ballot regardless of the outcome of the protest hearing.

On October 14, 2014, the Board of Elections passed a resolution finding that Ordinance 2014-10 was an administrative decision not subject to the use of the power to amend the City Charter. See Compl., Ex. L. As it had found with respect to the other two ballot measures, the Board further found that the petition to amend the Charter did not comply with the City Charter’s requirements and the Secretary of State’s required forms. for municipal petitions. But in accord with the Supreme Court’s writ, ¡the Board plaóed the Charter Amendment on the ballot.

The Charter Amendment was approved by the majority vote of Powell citizens on November 4, 2014. At the time the Charter Amendment was enacted, Powell Crossing had not submitted any applications for a construction permit in furtherance of its approved Final Development Plan. See Aff. of David M. Betz, City of Powell Director of Development, ¶ 3.

II. Procedural History

The complaint brings suit under 42 U.S.C. § 1983 and asserts several claims under, the umbrella of-the Due Process Clause of the Constitution: procedural due process, substantive due .process, void for vagueness and unlawful delegation of legislative authority. The complaint also alleges that the Charter Amendment violates' the constitutional prohibition against bills of attainder and violates the Equal Protection Clause. Further, the complaint asserts that the Charter Amendment violates the provision of the Ohio Constitution concerning which matters may be addressed by way of initiative and referendum. See Ohio Const., Art. II, § If. Powell Crossing 'seeks preliminary and permanent injunctive' relief prohibiting the City of Powell from enforcing the Charter Amendment against Powell Crossing, its property or Ordinance 2014-10.

The complaint names the City of Powell as the defendant. The City has adopted a position agreeing with plaintiff that the Charter .Amendment is unlawful — a stance that is consistent with the position the City took in resolving the Notice of Protest in August 2014 and in defending against the Petitioners’ mandamus action before the Ohio Supreme Court. The City nonetheless emphasizes that it has not committed any actions which violate plaintiffs constitutional rights because the Ohio Supreme Court ordered, the City to place the Charter Amendment measure on the ballot and because the City has not taken any steps to enforce the Charter Amendment as to Powell Crossing.

This court held several conferences with the parties, and it became clear that the parties do not dispute the facts. Further, they agree that the legal issues as to whether the Charter Amendment violates plaintiffs constitutional rights are amenable to resolution on- the briefs and that plaintiffs request for preliminary injunc-tive relief should..be consolidated under Fed. R. Civ. P. 65(a)(2) with, a final resolution on the merits of its request for permanent injunctive relief. Plaintiff, however, does wish to reserve its demand for damages and attorney’s fees for separate resolution.

On December 5, 2014, the court issued a Standstill Order requiring Powell Crossing to abide by the Charter Amendment and prohibiting the City from taking any action to implement the Charter Amendment as it pertains to Powell Crossing’s development plan. On January 26, 2015, the court granted leave to the Petitioners to file an amicus curiae brief opposing Powell Crossing’s motion for preliminary and- permanent injunctive relief. In that same order, the court instructed the parties .to submit further briefing concerning the issue of whether plaintiffs claims in essence amounted to a takings claim not ripe for review in federal court. Those briefs have been submitted and the matter is now ready for resolution.

On June 2, 2015, the National Association of Home Builders filed a motion for leave to file an amicus curiae brief in support of plaintiffs motion for injunctive relief. The City has filed a notice that it does not oppose the motion for leave but believes that the proposed amicus brief does not substantially add to the court’s consideration of the issues. The court hereby grants .the Association’s motion- for leave but largely agrees with the City’s evaluation of the amicus brief.

III. Standard of Review

Preliminary injunctions are available under Rule 65(a) of the Federal Rules of Civil Procedure. They are extraordinary remedies that are governed by the following considerations: “(1) whether the mov-ant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether. granting the, .stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay.” Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.2008).

Under Rule 65(a)(2), the court may in appropriate circumstances consolidate the request for a preliminary' injunction with a final hearing on the merits of the issues raised by the motion for injunctive relief. See Barden Detroit Casino, L.L.C. v. City of Detroit, 230 F.3d 848, 853 (6th Cir.2000). Here, there is no evidence to present .to the court beyond what was submitted with the verified complaint and the briefing, and the parties and Petitioners have presented their legal arguments in their briefs. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395-96, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (stating that a district court, when invoking Rule 65(a)(2), must provide' the parties with a full opportunity to present their cases); Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir.2010) (noting that while a district court should ordinarily conduct an evidentiary hearing prior to granting a permanent injunction, it need not do so if “no factual issues remained for trial”). Under Rule 52, a district court must find facts and state its conclusion of law in actions tried without a jury. Fed. R. Civ. P. 52(a)(1). The following sections of this opinion and order represent the court’s conclusions of law.

IV. Powell Crossing’s Claims Do Not Amount to an Unripe Takings Claim ‘

Though the complaint does, not allege a violation of the Takings Clause of the Fifth Amendment, Petitioners raise a significant threshold issue in tfyeir amicus brief. Petitioners argue that this court does not have jurisdiction over plaintiffs claims because they amount to a disguised and unripe takings claim. :

Under the Fifth Amendment, private property shall not “be taken for public - use, without just compensation.” U.S. Const. Amend. V; see Chicago Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (holding that the Takings Clause applies to the states). Courts recognize two types of takings: per se, or physical, takings and regulatory takings. McCarthy v. City of Cleveland, 626 F.3d 280, 284 (6th Cir.2010). A physical taking' occurs when “the government physically intrudes upon a plaintiffs property.” Waste Mgmt., Inc. of Tenn. v. Metro. Gov’t of Nashville and Davidson Cnty., 130 F.3d 731, 737 (6th Cir.1997). A regulatory taking occurs when a governmental regulation leaves a proper ty owner with either “no productive or economically beneficial use” of his property, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, 112. S.Ct. 2886, 120 L.Ed.2d 798 (1992) (emphasis in original), or prevents a property owner from enjoying “some — but not all — economic uses.” Harris v. City of St. Clairsville, 330 Fed.Appx. 68, 76 (6th Cir.2008). A takings claim of either type is not ripe for federal court review until a property owner is denied just compensation. Williamson Cnty. Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

Petitioners rely on Braun v. Ann Arbor Charter Twp., 519 F.3d 564 (6th Cir.2008), in arguing that the court cannot exercise jurisdiction over Powell Crossing’s claims. The Sixth Circuit held in Braun that “[wjhere a procedural due process claim occurs alongside a takings claim, we have focused on the circumstances of the specific case — and particularly the issue of when the alleged injuries occurred — before deciding whether to apply” Williamson County’s exhaustion requirement for a takings claim; 519 F.3d at 572 (6th Cir.2008) (citing cases). Because “the thrust of the plaintiffs’ due process claim [was] that the Township’s refusal to rezone their property was a taking,” the court found that the due process claim was ancillary to the takings claim and that the exhaustion requirement applied. Id. (“[I]f the plaintiffs were to succeed in their state-court takings claim, no procedural due process injury would likely exist.).

The court finds that Braun is distinguishable for two reasons. First, Powell Crossing has not asserted a takings claim alongside its due process claims. See Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463-64 (7th Cir.1988) (recognizing the viability of procedural and due process claims regarding a zoning action, where plaintiff opted not to assert a takings claim: “they do not want compensation; they want their site plan approved”). The complaint is devoid of takings-type allegations. Even so, Petitioners argue that Powell Crossing has asserted a takings claim by alleging the amount of the purchase price of the land in the complaint. Petitioners construe this allegation as signaling Powell Crossing’s intent to seek the value of its land as compensatory damages. Petitioners argue that Powell Crossing could seek compensation through state court proceedings for any loss in the value of its land. See Shelly Materials, Inc. v. Bd. of Zoning Appeals, 160 Fed.Appx. 443, 446 (6th Cir.2005) (“Ohio provides a procedure for obtaining just compensation for a governmental taking. A property owner may bring an action in mandamus, under Chapter 2731 of the Ohio Revised Code, to force government officials to commence eminent domain proceedings.”). The court disagrees with Petitioners’ interpretation of the complaint. The allegation of the purchase price of the land appears in the factual narrative section of the complaint, see Compl., ¶ 21, and is not repeated in the counts for relief or the prayer for relief.

• Second,'the thrust of Powell Crossing’s claims is not that the Charter Amendment was a taking. A review of the Sixth Circuit’s identification of the “kinds of federal zoning cases” provides guidance:

1. Just compensation takings claim. Plaintiff claims that the zoning, applied to his land constitutes a taking of his property without just compensation in contravention of the Fifth Amendment, the remedy sought being the just compensation.

2. Due process takings claim. Plaintiff claims that the zoning applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. The remedy sought is invalidation of the zoning regulation.

3. Arbitrary and capricious substantive due process claim. Plaintiff claims that the zoning regulation is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals, or general welfare. Two further subcategories may be discerned under this heading: (a) facial and (b) as applied.

4. Equal protection. Either based on suspect class, invoking strict scrutiny, or mere economic discrimination.

5. Procedural due process. Although not discussed by the Eleventh Circuit, there is, of course, a fifth category where plaintiff claims deprivation of procedural due process.

6. First Amendment. A category may also be defined when plaintiff claims that a First Amendment right such as freedom of speech or religion is violated by the zoning ordinance.

Pearson v. City of Grand Blanc, 961 F.2d 1211, 1215-16 (6th Cir.1992) (footnotes omitted) (citing Eide v. Sarasota Cnty., 908 F.2d 716, 720-22 (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991)).

Powell Crossing’s procedural due process claim does not rest on allegations of “diminution in the value” of the land, nor does.it seek compensation for a taking. Cf. J-II Enterprises, LLC v. Bd. of Comm’rs of Warren Cnty., Ohio, 135 Fed.Appx. 804, 806 (6th Cir.2005) (construing a purported procedural due process claim as a takings claim where “the injury of which Plaintiffs complain and the relief they seek concern rights1 guaranteed by the Takings Clause and the Just Compensation Clause of the Fifth Amendment”). Rather, thé thrust of the procedural due process claim is that there were infirmities in the process — that the Final Development Plan approved by City Council was then subjected to review and rejected by vóters who lacked authority under state law to review the plan and that Powell Crossing did not have an adequate opportunity to be heard. See Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir.1989) (“[I]f the [claimed] injury is'the infirmity of the process, neither a final judgment nor exhaustion [of administrative remedies] is required.”). Such a procedural due process claim is “instantly cognizable in federal court” at the time of the alleged procedural defect. Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir.1991) (“[I]n the case of a procedural due process claim, the allegedly infirm process is an injury in itself,.. .whereas, in the context of a takings claim, the alleged injury — a diminution in property value — cannot be assessed with any degree of certainty until the municipality arrives at a final decision as to how the property owner will be permitted to develop his property.”) (internal quotation marks and citation omitted); see also Braun, 519 F.3d at 572 (“The injury in Nasierowski was complete the instant he did not receive notice' or a hearing. Thus, the plaintiff in Nasierowski was seeking the very opportunity.-to have a hearing. . .and not a declaration .that the state action constituted a.taking.”).

Further, the thrust of the substantive due process and equal protection claims is that, the Charter -Amendment targeted or singled out Powell Crossing. These claims rest on allegations of arbitrary and unfair treatment and not upon an alleged taking. See Lingle v. Chevron U.S.A., Inc., 544, U.S. 528, 542-43, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (“Due process violations cannot be remedied under the Takings Clause, because if a government action is to .be found impermissible — for instance because it fails to meet the public use requirement or is so arbitrary as to violate due process — that is the end of the inquiry. No amount of compensation can authorize such action.”) (internal quotation marks and citations omitted); Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d. 1020, 1025 (9th Cir.2007) (“After Lingle, the Fifth Amendment does not invariably preempt a claim that land use action lacks any substantial relation to the public health, safety,-or- general welfare_We see no difficulty in recognizing the alleged deprivation of rights in real property as a proper subject of substantive due process analysis.”) (internal quotation marks and citations omitted); Pearson, 961 F.2d at 1214-15 (holding that “the very existence of an allegedly unlawful zoning , action, without more, makes a substantive due process claim ripe for federal, adjudication”); Gypsum Res., LLC v. Masto, 672 F.Supp.2d 1127, 1145 (D.Nev.2009) (same).

- Finally, the court rejects Petitioners’ assertion that Powell Crossing’s claims are so -meritless as to represent an attempt to disguise the claims and. circumvent the exhaustion requirement for a takings claim. See Choate’s Air Conditioning & Heating, Inc. v. Light, Gas, Water Div., 16 Fed.Appx. 323, 330 (6th Cir.2001) (rejecting due process claim where plaintiff “merely repackaged a takings claim as a substantive due process violation for purposes of filing a § 1983 action in federal court” and “failed to set forth any constitutional basis - for the asserted substantive due process violation”); Williamson v. Scioto Two., No. 2:13-cv-683, 2014 WL 4388266 at *9 (S.D.Ohio Sept. 5, 2014) (holding that “unclear and underdeveloped” due process claim could not be used to “bypass” the ripeness requirement for a takings claim); Stanislaw v. Thetford Twp., No. 09-10256, 2011 WL 3516064, at *1 (E.D.Mich. Aug, 11, 2011) (holding that allegations of a wrongful taking without compensation could not be re-characterized as a due process claim in an effort to avoid the ripeness requirement). The court finds that the complaint sets forth the grounds for cognizable due process and equal protection claims and that courts, when reviewing allegations similar to those made by Powell Crossing, have analyzed them as due process and equal protection claims, rather than takings claims. See, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (substantive due process and equal protection challenges by developer to having its site plan subjected to a referendum); Wedgewood, 610 F.3d 340 (procedural due process challenge by. landowner to a change in zoning law that impaired its ability to develop the property); 37712, Inc. v. Ohio Dep’t of Liquor Control, 113 F.3d 614 (6th Cir.1997) (procedural due process, substantive due process and equal protection challenges by owner of liquor permit, to a local option referendum); Club Misty, Inc. v. Laski, 208 F.3d 615 (7th Cir.2000) (procedural due process challenge by owner of liquor license to a local option election).

V. Due Process Claims

A. Procedural Due Process

States may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. Procedural due process “is traditionally viewed as the requirement that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir.2012) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). When a property or liberty interest is at stake, “procedural due process generally réquires that the state provide a person with notice and an opportunity to be heard” before the deprivation occurs. Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir.2005).

In order to establish a procedural due process claim, plaintiff must show that “(1) it had a life, liberty, or property interest protected by the Due Process Clause; (2) it was deprived of this protected interest; and (3) the state did not afford it adequate procedural rights.” Daily Services, LLC v. Valentino, 756 F.3d 893, 904 (6th Cir.2014).

1. Protected Property Interest

Property interests “are created and their dimensions áre defined by existing rules or "understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To determine whether Powell Crossing has a protected property interest, the court looks to substantive state zoning laws. Wedgewood, 610 F.3d at 352. “[A] party obtains a protected property right under the Fourteenth. Amendment when it can demonstrate a ‘legitimate claim of entitlement’ or a ‘justifiable expectation’ in the approval of his [building] plan.’ ” Id. (quoting Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir.1992)). In order to establish an expectation or claim of entitlement, a plaintiff must prove that the state or local- governmental actor lacked the discretion to.deny the proposed land use, so long as plaintiff complied with all applicable zoning requirements. See Silver, 966 F.2d at 1036; Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir.2000) (stating that there can be “no legitimate claim of entitlement to a discretionary decision”).

Powell Crossing argues that its property interest in the' mixed-use development plan vested in October 2013 when it filed an application for approval of its preliminary plan of development. Powell Crossing cites case law stating that “a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate.” Wedgewood, 610 F.3d at 352 (citing Gibson v. Oberiin, 171 Ohio St. 1, 5, 167 N.E.2d 651, 654 (Ohio 1960)). Vesting occurs if the property owner complies “ ‘with all the legislative requirements for the procurement of a building permit and his proposed structure falls within the use classification of the area in which he proposes to build it.’ ” Id. (quoting Zaremba Dev. Co. v. City of Fairview Park, 84 Ohio App.3d 174, 176, 616 N.E.2d 569, 571 (Ohio Ct.App.1992)). Where the landowner has complied with existing law, he has a right to a permit, see id. and, under Ohio law, subsequent changes in the law “ ‘cannot deprive him- of the right,’ ” Zaremba, 84 Ohio App.3d at 176, 616 N.E.2d at 571 (quoting Gibson, 171 Ohio St. at 5-6, 167 N.E.2d at 654).

The court agrees that Powell Crossing has a protected property interest in its mixed-use development plan but finds that the interest vested later than at the preliminary application stage. The-case law cited by Powell Crossing concerns situations in which the government actor lacked discretion under Ohio law to deny a benefit. See Zaremba, 84 Ohio App.3d at 176, 616 N.E.2d at 571 (city was “duty bound” to issue a building permit). However, “a party cannot possess a property interest in the receipt of a benefit when the state’s decision to award or withhold the benefit is wholly .discretionary.” Med Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir.2002). If, as will be shown the case here, the government actor has the discretion to deny a benefit, then the developer does not have a “legitimate, claim of entitlement” or a “justifiable expectation” in the approval of its development plan application. Silver, 966 F.2d at 1036.

“In Ohio, ‘the right to approval of a land-use proposal is determined by the regulation in existence at the time the application is filed.’ ” Ziss Bros. Const. Co., Inc. v. City of Independence, Ohio, 439 Fed.Appx. 467, 472 (6th Cir.2011) (quoting Andreano v. City of Westlake, 136 Fed.Appx. 865, 871 (6th Cir.2005)). The City of Powell’s Municipal Code creates a Downtown Business District, in which Powell Crossing’s property is located. See City of Powell Code § 1143.16.2. The Code specifies the uses, structures, facilities and activities permitted in the Business District. Id. Among the approved uses are retail shops, offices, single-family dwellings and multi-family dwellings. Id., § 1143.16.2(b). Plans for development within the Business District must undergo a three-step review process. The developer must first attend a pre-application meeting with the City Manager, the Zoning Administrator,-.and the Planning , and Zoning Commission. Id., § 1143.11(a). The pre-application meeting ís “informal” and “no statements” made by City officials are binding. Id.

Following the pre-application meeting, the developer may then submit an application for approval of a Preliminary Planned District Development Plan. The Commission conducts a public hearing on the preliminary application and votes on whether to approve it. See City of Powell Code § 1143.11(b)-(g). If the application satisfies the requirements detailed in § 1143.11(c) and is “consistent” with the considerations set out in § 1143.11(g), then “the Commission shall approve the preliminary development plan in principle.” Id., § 1143.11.(g) (emphasis added).

Though § 1143.11 expressly limits the ability of the Planning and. Zoning Commission to reject. an application for the approval of a preliminary development plan, it does not contain language so limiting the discretion of City Council. If the developer receives approval of the preliminary plan application, it then may submit a final plan application that is subject to certification by the Zoning Administrator, a public healing'and recommendation by the Commission, and a public hearing and vote by City Council.' Id., § 1143.11(h)-(n). City Council “shall either adopt or deny the recommendation of the Planning and Zoning Commission or adopt some modification thereof.” Id., § 1143.11(n) (emphasis added). The Code does not require City Council to approve a plan even if the Commission was required to recommend its approval. Thus, the Code gives .City Council broad discretion to approve, reject or modify the Commission’s recommendation, and the act of filing a preliminary development plan application does not create an entitlement to final approval by City Council. See EJS Props,, 698 F.3d at 856 (holding that the developer did not have a protected property interest in a rezoning petition, which had been approved by the city’s zoning and planning committee, because city council retained full discretion to approve, deny or amend the petition); Silver, 966 F.2d at 1036 (holding that a property owner did not have entitlement to a zoning certificate, even when the proposed use was conditionally permitted, because the zoning board had “broad discretion” to decline to issue the certificate). See also J.D. P’ship v. Berlin Twp. Bd. of Trustees, 412 F.Supp.2d 772, 780 (S.D.Ohio 2005) (holding that developer did not have a protected property interest in approval of housing development application because the township’s zoning resolution did not require, the board of trustees to approve the application); White Oak Prop. Dev., LLC v. Washington Twp., Ohio, No 1:07-cv-595, 2009 WL 961175 at *13 (S.D.Ohio Apr. 7, 2009) (holding that developer did not have a property interest in a development plan because the board of trustees could “either adopt or deny, or adopt some modification” of the zoning commission’s recommendation), aff'd, 606 F.3d 842, 853 (6th Cir.2010); State ex rel. Harpley Builders, Inc. v. Akron, 62 Ohio St.3d 533, 536, 584 N.E.2d 724, 726 (Ohio 1992) (holding that a municipality has the inherent authority to rescind its preliminary approval of a proposed housing development.. plan); Grove v. Oxford City Council, No. CA2010-04-076, 2011 WL 193338 at **2-3 (Ohio Ct.App. Jan. 10, 2011) (holding that city’s preliminary approval of development plan was “just that, preliminary,” and “did not- fix any duties, privileges, benefits or establish any legal relationships with finality”) (internal quotation marks omitted).

The court nonetheless finds that Powell Crossing did obtain a protected property interest in its development plan when City Council approved the plan. Property owners “have an interest in a discretionary benefit, such as a re-zoning ordinance, after it is conferred.” EJS Props., 698 F.3d at 856. The Sixth Circuit’s holding in Buckeye Cmty, Hope Found. v. City of Cuyahoga Falls, is on point:

[T]he alleged property interest at stake in both Silver and Triomphe [Investors v. City of Northwood, 49 F.3d 198 (6th Cir.1995)] arose from, the failure of the decision-making bodies to approve plain.-tiffs’ proposed use for their respective properties. However, in the case at bar, the City Council actually approved plain- . tiffs’ site plan after having concluded that the site plan conformed with the existing zoning regulations. Thus, the property interest at stake in this -case arose from the City Council’s approval of plaintiffs’ site plan....

263 F.3d 627, 642 (6th Cir.2001), rev’d on other grounds, 538 U.S. 188, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003). Here, once City Council approved the final plan application, the' City did not have discretion- to rescind the benefit and its decision was subject only to judicial review under Ohio Revised Code § 2506.01. See Med Corp., 296 F.3d at 409 (holding that in order to establish a constitutionally-protected property interest, plaintiff “must point to some policy, law, or mutually, explicit understanding that both confers the benefits and limits the-, discretion of the City to rescind the benefit”); Chandler v. Vill. of Chagrin Falls, 296 Fed.Appx. 463, 470 (holding that landowner “had a protected property interest in the building permit once it was issued”); Hillside Prods., Inc. v. Duchane, 249 F.Supp.2d 880, 893 (E.D.Mich.2003) (“Entitlements to permits are rare. In this case, however, Defendants had already ex: ercised their discretion to grant a Special Approval Land Use.... ”).

Petitioners argue that despite City Council’s approval 'of the Final Development Plan, Powell Crossing does not have a protected property interest because the preliminary plan application failed in the first instance to comply with the Code’s proof-of-financing' requirement. The Code requires a developer to submit evidence with its preliminary plan application “that the applicant has sufficient control over the land and financing to initiate the proposed development plan phase within two (2) years.” City of Powell ' Code § 1143.11(c)(9). It is undisputed that Powell Crossing was not required to submit traditional proof-of-financing documentation. because the City’s Director of Development. “was familiar with Powell Crossing through prior development projects and so considered it responsible.” Ebersole I, 140 Ohio St.3d at 492, 20 N.E.3d at 684.

Petitioners argue that the City should not have waived strict compliance with the proof-of-financing requirement. This argument, which raises the issue of whether the Director’s familiarity with the developer’s financial wherewithal counted as evidence of the applicant having sufficient financing, could have been raised through an administrative appeal of Ordinance 2014-10 under Ohio Revised Code § 2506.01. The Ohio Supreme Court found that the very argument Petitioners are now making concerned “an error that the administrative appeal process in R.C. Chapter 2506 exists to correct.” See Ebersole I, 140 Ohio St.3d at 492, 20 N.E.3d at 684-85. Them argument is of no avail here because the City in fact gave its approval to the development plah; that is, the City conferred the benefit and Powell Crossing’s property interest vested. See Chandler, 296 Fed.Appx. at 470 n. 4 (rejecting as “wholly without merit” the theory that a property owner did not have a protected property interest in an already-issued building permit because state appellate procedures were available to review the permit decision: “Were this Court to adopt such a rule, a whole class of regulated benefits, licenses and permits would be excluded from the protection of the Due Process Clause”); Stile v. Copley Twp., Ohio, 115, F.Supp.2d 854, 865 n. 21 (N.D.Ohio 2000), (rejecting as a “red herr ring” the .argument that plaintiffs property interest in a zoning certificate, which the court found had vested, was not pro-tectable because of prior noncompliance with the application requirements).

2. Deprivation without Adequate Procedural Rights

Having established a protected property interest in its 'development'plan, Powell Crossing must next establish that it was deprived of it's property interest and that the state failed to .afford it adequate procedural rights. Daily Services, 756 F.3d at 904.

There is no dispute that Powell Crossing has suffered a deprivation of its, property interest in the Final Development Plan. The Charter Amendment expressly forbids Powell Crossing from taking any action, including construction activity, in furtherance of the Final Development Plan or Ordinance 2014-10. And this deprivation is permanent, as the Charter Amendment further provides that at a minimum "the high-density housing component of Powell Crossing’s plan will not be permitted under the forthcoming Final Comprehensive Plan. Thus, the Charter Amendment deprives Powell Crossing of its ability to use the land in the manner approved by City Council in Ordinance 2014-10.

The question of what process Powell. Crossing was due is the difficult issue here. The Sixth Circuit has directed courts to determine whether the deprivation is a result of “an established procedure” or is “pursuant to a random and unauthorized act” of a state employee. Daily Services, 756 F.3d at 907; Wedgewood, 610 F.3d at 349-50. “If the former, then it is both practicable and feasible for the state to provide pre-deprivation process, and'the state must do so regardless of the adequacy of any post-deprivation remedy..., If the latter, then predeprivation procedures are simply impracticable and an adequate post-deprivation remedy affords all.the process that is due.” Walsh v. Cuyahoga Cnty, 424 F.3d 510, 513 (6th Cir.2005) (internal quotation marks and citations omitted).

a. Random and Unauthorized Act

Powell Crossing asserts that the deprivation it suffered came by means of a random and unauthorized act. Powell Crossing focuses on the latter part of that phrase, viewing the Charter Amendment as “unauthorized” in the. sense that the Ohio Constitution allows only legislative decisions, and not administrative decisions, to be subjected to the exercise of initiative and referendum powers. See Ohio Const., Art, II, § If (“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by-law. to control by legislative action[.]”). Powell Crossing points to the Ohio Supreme Court’s conclusion that City Council’s approval of the development plan was- administrative in nature. Ebersole I, 140 Ohio St.3d at 491-92, 20 N.E.3d at 684 (“[C]ity ordinances that adopt final development plans pursuant to preexisting planned community development, without changing the zoning, are not subject to referendum.”); see also Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 82 Ohio St.3d 539, 697 N.E.2d 181 (Ohio 1998).

The court, for reasons explained in Section IX below, agrees that certain provisions of the Charter Amendment were the functional equivalent of a. referendum on Ordinance 2014-10 and beyond the scope of the powers reserved to the people by the Ohio Constitution. Cf. Ebersole I, 140 Ohio St.3d at 487, 20 N.E.3d at. 680 (stating that the Charter Amendment “would among other things, nullify Ordinance No. 2014-10”); State ex rel. Comm. for the Referendum of Ordinance No, 3844-02 v. Norris, 99 Ohio St.3d 336, 342, 792 N.E.2d 186, 191-92 (Ohio 2003) (per curiam) (holding that an ordinance adopting a final development plan was an administrative action not subject to referendum).

However, the court finds that the “random and unauthorized act” 'mode of due process analysis is not applicable here. The word “random” (in contrast to the word “established” in the other mode of analysis) provides a critical clue that this area of due process jurisprudence addresses unanticipated deprivations for which the state cannot be reasonably expected to provide predeprivation process. See Hudson v. Palmer, 468 U.S. 517, 531-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). While due process generally requires predeprivation notice and an opportunity to be heard, Warren, 411 F.3d at 708, postdeprivation process is all that is required when there is “either the necessity of quick action by the State or the impracti cality of providing any meaningful predeprivation process, when coupled with' the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking.” Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). “The underlying rationale' of Parratt is that when deprivations of property are effected through random- and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur.” Hudson, 468 U.S. at 533, 104 S.Ct. 3194. In such circumstances, “meaningful postdeprivation remedy for the loss” is the process due. Id.

The placement of the Charter Amendment on the ballot and its passage by voters were not “random” in the sense meant by the case law. This is not a situation in which a state employee lost or destroyed property, as in Parratt and Hudson, or engaged in some other unforeseeable act. See Walsh, 424 F.3d at 513-14; DiLuzio v. Vill. of Yorkville, Ohio, 796 F.3d 604, 608 (6th Cir.2015) (holding that the official’s action must be “unpredictable”); Williamson v. Scioto Twp., No. 2:13-cv-683, 2014 WL 4388266 at *10 (S.D.Ohio Sept. 5, 2014) (township employee improperly installed a culvert). Indeed, there is no action of a state employee in question here at all. Rather, Petitioners used established state procedures, including collecting signed petitions from 10% of the electors, to put the Charter Amendment on the ballot. See Ohio Const., Art. XVIII, § 9 (outlining the procedure by which proposed amendments to a city charter can be placed on the ballot); Powell City Charter, Art. XII, § 12.01 (same). Voters then approved the measure and the City was required under state law to treat the enacted Charter Amendment as valid law. See Ohio Const., Art. XVIII, § 9. Powell Crossing itself concedes that the City was not “blind-sided” by the citizens’ use of the power to amend the Charter.” Doc. 19 at 3.

A review of the Supreme Court’s decision in Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), limiting the reach of Parratt and Hudson, further highlights why the “random and unauthorized act” mode of analysis does not apply here. In Zinermon, staff at a state mental hospital admitted the plaintiff under a voluntary placement procedure even though plaintiff was not competent to give informed consent, as required by statute. The Court held that Parratt and Hudson were inapplicable for several reasons, including two worth noting here. First, the deprivation would have had to occur “at a specific, predictable point,” which was the point of admission to the hospital. Id. at 136, 110 S.Ct. 975 (explaining that it was foreseeable that “a person requesting treatment for mental illness might be incapable of informed consent” and that any “erroneous deprivation will occur, if at all, at a specific, predictable point in the admission process — when a patient is given admission forms to sign). Second, the state could have provided predeprivation process because state law had an established procedure for involuntary placement. Id. at 136-37, 110 S.Ct. 975.

In this case, the allegedly erroneous deprivation had to occur, if at all, at a specific, predictable point in time — on election day, when voters would decide whether to approve the Charter Amendment and thereby nullify Ordinance 2014-10. Further, the state had in place predeprivation process for Powell Crossing. See Hudson, 468 U.S. at 534, 104 S.Ct. 3194 (stating that the “controlling inquiry” in determining the applicability of Parratt “is solely whether the state is in a position to provide for predeprivation process”). Under Ohio Revised Code § 3501.39, Powell Crossing could, and did, file a notice of protest with the County Board of Election) and a mandamus action or action for writ of prohibition was available in state court under Ohio Revised Code § 2731.02, See Lane v. City of Pickerington, 588 Fed.Appx. 456, 466 (6th Cir.2014) (“We conclude .. .that Parratt has no application here because Lane was not deprived of his constitutionally protected property interest due to a random or unauthorized act; Defendants had the opportunity to provide Lane pre-deprivation process pursuant to an established procedure — and indeed did provide a pre-términation hearing, albeit á constitutionally inadequate one”).

Thus, the court finds that the deprivation of Powell Crossing’s property interest in the Final Development Plan did not occur by means of a random and unauthorized act of the state.

b. Established State Procedure

The essence of how Powell Crossing alleges it was deprived of its property interest is this — voters enacted a Charter Amendment containing provisions which exceeded the scope of their authority to act by ballot measure under the Ohio Constitution. The deprivation, as noted above, was accomplished by means of established state procedure. See Ohio Const., Art. XVIII, § 9. As such, the basic requirement of the Due Process Clause is that Powell Crossing had notice and an opportunity to be' heard before it was deprived- of its property interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). See also Nasierowski, 949 F.2d at 896 (holding that where a proposed zoning amendment has an impact on a “specifiable individual,” the individual is entitled to predeprivation notice and a hearing); Wedgewood, 610 F.3d at 354-55 (same).

Powell Crossing characterizes the Charter Amendment as an unauthorized, ultra vires act. However, a violation Of state law does not “automatically translate into a deprivation of procedural due process under the United States Constitution.” DePiero v. City of Macedonia, 180 F.3d 770, 788 (6th Cir.1999). “The question thus is not whether [the state] acted ultra vires; it is whether the' process followed . . .meets due process.” Jaber v. Wayne State Univ. Bd. of Governors, 487 Fed.Appx. 995, 998 (6th Cir.2012) (rejecting due procéss claim where plaintiff alleged “that only the Board, not the Dean, has the authority under Michigan law to revoke degrees, making the Dean’s decision a due process violation”).

The court’s finding that the deprivation came by means of an established state procedure compels the conclusion that Powell. Crossing was due more process (predeprivation notice and opportunity to be heard) than what it has alleged it was due (a postdeprivation hearing under Par-ratt and Hudson)'. Nonetheless, Powell Crossing’s briefs set forth the reason why it belieyes that the process it.did receive was inadequate. See Doc. 2 at 31; Doc. 19 at 14-15; Doci 27 at 14 n.3.

There is no dispute that Powell Crossing received notice of the-proposed Charter Amendment. Though it is unclear how Powell Crossing first received notice of the July 17, 2014 petition to amend the Powell City Charter, the verified complaint states that Powell Crossing knew about it in time to file a notice of protest on July 28. See Compl., ¶ 56; see also Ohio Const., Art. XVIH, § 9 (providing that public notice be given of all proposed charter amendments).

The opportunity to be heard must be “appropriate to the nature of the case,” Loudermill, 470 U.S. at 542, 105 S.Ct. 1487, and is evaluated in light of the private interest at stake, “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and the state’s interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would, entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct 893, 47 L.Ed.2d 18 (1976). The fundamental requirement is that the property owner receive an opportunity to be heard “ ‘at a meaningful time and in a meaningful manner.’.” Id. at 333, 96 S.Ct. 893 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct 1187, 14 L.Ed.2d 62 (1965)).

Powell Crossing initiated the • predepri-vation hearing process by filing a notice of protest with the Delaware County Board of Elections. See O.R.C. § 3501.39. Upon validating the signatures on the petition, the Board referred 'the matter to City Council. The court discerns no error in that action, nor does Powell Crossing allege any error, as Ohio law required City Council to draft an ordinance to submit the proposed Charter Amendment to the voters. See Ohio Const., Art. XVIII, §§ 8, 9.

After the ordinance to submit the Charter Amendment to voters received r;s first reading by City Council, Powell Ciossing had two weeks to submit legal briefing and prepare for the Council’s next public meeting, During that meeting, counsel for Powell Crossing presented the very position that forms the basis of its procedural due process claim here — that, because the Charter Amendment was a ‘ “disguised” referendum on “an administrative matter, Ordinance 2014-10,” there was “no authority for this to go to the ballot.” See Aug. 19, 2014 Meeting Tr. at 13-15. At the meeting, Petitioners also spoke and' the City’s Law Director provided his opinion that the Charter Amendment was unconstitutional. City Council defeated the ordinance to submit the proposed Charter Amendmént to the voters, with most of the Council members stating'on the record the reasons for their vote. Id, at 83-90.

The court finds that the City Council meeting provided Powell Crossing with a meaningful opportunity to be heard. Powell Crossing, which prevailed before City Council, does not argue otherwise. With a significant property interest at stake, Powell Crossing was afforded the opportunity to submit written briefs and have legal counsel make a presentation at the meeting. The meeting also properly balanced the significant interests of the City and the public in the matter, which concerned an upcoming election, the City Charter and development in the City’s Downtown Business District. The two-week time frame allowed by City Council ensured its prompt attention to the ballot measure but also provided sufficient time for the City’s Law Director to form a legal opinion and for Powell Crossing and Petitioners to submit briefs. The meeting was public and all interested parties had an opportunity to speak. ..

The fault :,that Powell Crossing finds with the process is that it was “futile” — ■ that, despite City Council’s rejection of the proposed - ballot measure, as well as the October 14, 2014 resolution of the Delaware County Board of Elections against the measure, the proposed Charter Amendment still appeared on the ballot and was approved by voters. The court is not persuaded by this argument. City Council’s decision had legal effect when it was. rendered. The Ohio Supreme Court explained that “[a]s a result of the-combined action of the -'city, counc