Case: 1:20-cv-02754-PAG Doc #: 1 Filed: 12/11/20 1 of 29. PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`BAYMARK HEALTH SERVICES OF OHIO, INC.,
`1720 Lakepointe Drive, Suite 117
`Lewisville, TX 75057,
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`
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`MKB HOLDINGS, LLC,
`3659 Green Road, Suite 214
`Cleveland, OH 44122,
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`
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`CITY OF PARMA HEIGHTS, OHIO,
`6281 Pearl Road
`Parma Heights, OH 44130,
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`CITY OF PARMA HEIGHTS PLANNING
`COMMISSION,
`6281 Pearl Road
`Parma Heights, OH 44130,
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`
`
`DENNIS PATTEN, in his official capacity as
`CITY OF PARMA HEIGHTS DIRECTOR OF
`PUBLIC SERVICE,
`6281 Pearl Road
`Parma Heights, OH 44130,
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`
`
`Civil Action No. 1:20-cv-2754
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`Judge:
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`Magistrate Judge:
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`JURY DEMAND ENDORSED
`HEREON
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`and
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`Plaintiffs,
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`v.
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`and
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`and
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`Defendants.
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`COMPLAINT
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`Plaintiffs BayMark Health Services of Ohio, Inc. (“BayMark”) and MKB Holdings,
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`LLC (together, “Plaintiffs”), for their Complaint against Defendants City of Parma Heights,
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`Ohio (the “City”), the City of Parma Heights Planning Commission (the “Planning
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`Commission”), and Dennis Patten in his official capacity as the City’s Director of Public
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`Service (the “Director”) (collectively, “Defendants” or “Parma Heights”) aver and allege:
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`I.
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`INTRODUCTION
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`1.
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`Nearly every American has experienced the impact of the opioid crisis. Its
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`effects have had a devastating impact across Ohio, recognized as “ground-zero for opioid
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`overdose deaths” in the United States.1 Opioid Use Disorder (“OUD”) exists in nearly
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`every Ohio community, particularly in Cuyahoga County and Parma Heights.
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`2.
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`The number of overdose deaths in Cuyahoga County surged in 2020 and is
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`on pace to be the highest number of such deaths in three years.2 Heroin, fentanyl, and
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`other opioids have been, and continue to be, the leading cause of overdose deaths in
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`Cuyahoga County.3
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`3.
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`In response to the significant unmet need for OUD services in Parma
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`Heights and its surrounding area, BayMark has sought to open an opioid treatment office
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`(also known as a methadone treatment office) in Parma Heights that will provide
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`medication assisted treatments primarily utilizing methadone and buprenorphine, along
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`with counseling and recovery services, to provide comprehensive, evidence-based
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`1 Courtney Astolfi, Report: Ohio Ground-Zero for Opioid Overdose Deaths, THE PLAIN DEALER,
`(Nov. 30, 2016), https://www.cleveland.com/metro/2016/11/report_ohio_ground-zero_for_
`op.html (“Ohio saw more opioid overdose deaths than anywhere else in the nation”).
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`2 Evan MacDonald, Cuyahoga County Sees 19 Drug Overdose Deaths in a Week, on Pace for
`Highest Total in Three Years, THE PLAIN DEALER, (Oct. 13, 2020), https://www.cleveland.com
`/metro/2020/10/cuyahoga-county-sees-19-drug-overdose-deaths-in-a-week-on-pace-for-highest
`-total-in-three-years.html.
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`3 Dr. Thomas P. Gilson, Cuyahoga County Medical Examiner’s Office Heroin/Fentanyl/Cocaine
`Related Deaths in Cuyahoga County, (Oct. 9, 2020) http://medicalexaminer.cuyahogacounty.
`us/pdf_medicalexaminer/en-US/HeroinFentanylReports/SEP2020-HeroinFentanylReport.pdf.
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`2
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`treatment for individuals with OUD.
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`4. Methadone is prescribed to reduce or eliminate chronic opioid addiction
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`while the client is provided a comprehensive range of treatment. Methadone is a long-
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`acting synthetic narcotic analgesic that is administered in sustained, stable, medically
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`determined dosage levels for periods in excess of 21 days. Among other things,
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`methadone blocks the opiate receptor in the brain. This means that if someone on a
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`methadone treatment were to also use an opiate, the individual will not typically feel a
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`“high” from the opiate. In short, the methadone stabilizes someone suffering from OUD
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`by providing a “maintenance dose” of opioids, allowing the individual to avoid
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`withdrawal symptoms and pursue a healthy lifestyle without opioid cravings leading to
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`relapse.
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`5.
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`During the course of the methadone treatments, clients suffering from OUD
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`also receive a range of other outpatient services. These services habilitate and rehabilitate
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`clients with OUD to a basic level of social, life, work, and health capabilities that help
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`them become productive, independent members of society. Services include replacement
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`therapy, evaluation of medical, employment, alcohol, criminal, and psychological
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`problems, screening for diseases that are disproportionately represented in the opioid-
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`abusing population, monitoring for illicit drug use, counseling by addiction counselors
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`that are evaluated through ongoing supervision, and professional medical, social work,
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`and mental health services either on-site or by referral.
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`6.
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`Unfortunately for those suffering from OUD in and around Parma Heights,
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`the City has arbitrarily and unlawfully prevented BayMark from providing these much-
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`needed services.
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`7.
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`The City has continuously – over the course of years – refused to issue a
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`final decision on BayMark’s pending zoning applications. Without any legitimate basis,
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`the City has arbitrarily and capriciously refused to recognize that BayMark’s opioid
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`treatment office is a “commercial business,” an expressly permitted use of BayMark’s
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`property. Likewise, the City has arbitrarily and capriciously refused to approve
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`BayMark’s site plan, even though it meets all of the requirements set forth in the City’s
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`Zoning Code. It is now clear that while the City is refusing to act upon BayMark’s
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`pending applications and that the City is going to impose new zoning restrictions on use
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`of the property and prohibit BayMark from operating an opioid treatment office on the
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`property.
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`8.
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`Rather than objectively applying its Zoning Code to approve BayMark’s
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`operation of an opioid treatment office, the City has discriminated against and is
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`continuing to discriminate against BayMark based on unsubstantiated fears and stigma
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`against BayMark and its clients’ OUD disabilities.
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`9.
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`The City’s arbitrary refusal to permit BayMark to open its opioid treatment
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`office has led to overdose deaths that could have been prevented. Meanwhile, BayMark
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`has lost significant sums during the City’s arbitrary delays. BayMark therefore seeks
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`injunctive, monetary, and declaratory relief for the City’s violation of the Americans with
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`Disabilities Act, the Rehabilitation Act, the United States and Ohio Constitutions, and the
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`City’s own Zoning Code.
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`II. JURISDICTION AND VENUE
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`10. This action arises under the United States Constitution, the Ohio
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`Constitution, and laws of the United States.
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`11.
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`Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331,
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`1343(a), 1367, and 2201.
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`12. Venue in this Court is proper under 28 U.S.C. § 1391(b) as this is the judicial
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`district in which a substantial part of the events or omissions giving rise to the claims
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`occurred.
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`13. Additionally, further recourse to state procedures would be futile, and/or a
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`final decision is not required by existing law.
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`III. PARTIES
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`14. BayMark is a corporation organized under the laws of the State of Ohio with
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`its principal place of business in Lewisville, Texas. BayMark has leased a portion of the
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`property located at 6700 Pearl Road in the City of Parma Heights, Ohio (the “Property”)
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`for purposes of operating an opioid treatment office. BayMark sues on behalf of itself
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`and on account of injuries it has suffered and will continue to suffer due to its association
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`with persons with disabilities.
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`15. MKB Holdings, LLC (“MKB”) is a limited liability company organized
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`under the laws of the State of Ohio, with its principal place of business in Cleveland,
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`Ohio. MKB purchased the Property in 2014 and subsequently leased a portion of the
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`Property to BayMark.
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`16.
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`The City is a chartered municipal corporation and body politic operating under
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`the laws of the State of Ohio and is situated within Cuyahoga County, Ohio. Upon
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`information and belief, the City receives and distributes money from the federal government
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`for its programs and activities.
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`17. Dennis Patten is the current Director of Public Service of the City of Parma
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`Heights and is named in his official capacity.
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`18.
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`The City acts by and through various commissions and public officials
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`including the Planning Commission and the Director.
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`IV. FACTS COMMON TO ALL CLAIMS
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`A. BayMark Is the Largest Opioid Treatment Program Provider in North America.
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`19.
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`Previous narcotic addiction, including OUD, is a disability with severe
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`medical, emotional, and societal consequences. Persons receiving medically supervised
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`methadone treatment are not capable of performing major life activities without the
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`assistance and support provided by methadone treatment programs or other approved
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`treatment modalities.
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`20.
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`Society incorrectly views recovering narcotic addicts, including persons
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`suffering from OUD, as damaged individuals, incapable of leading ordinary, productive
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`lives. Society stigmatizes previous illegal drug users and recovering drug addicts. Many
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`people and institutions retain prejudices against former illegal drug users, including
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`against individuals suffering from OUD.
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`21. BayMark provides counseling and recovery services to individuals
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`suffering from OUD. BayMark, including its affiliates, has operated in this capacity for
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`over forty years and is the largest opioid treatment program provider in North America.
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`BayMark and its affiliates currently operate and/or support 274 locations throughout the
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`United States and Canada, including offices throughout Ohio. BayMark has a reputation
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`for treating individuals with OUD, treating more than 57,000 individuals each day across
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`its locations.
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`22. BayMark’s treatment offices are regulated by the federal Substance Abuse
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`and Mental Health Services Administration (“SAMHSA”) and the federal Drug
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`Enforcement Agency (“DEA”). BayMark’s opioid treatment offices are licensed by the
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`State of Ohio, certified by SAMSHA, and registered with the DEA.
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`23. BayMark’s opioid treatment programs are operated through local offices
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`that target chronic opioid users who have failed to respond to other types of treatment.
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`BayMark screens each new client to ensure that he or she has a history of opiate or
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`narcotic addiction. BayMark’s clients’ addictions impair their lives in numerous ways, such
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`as interfering with their employability, parenting, regular life functions, social interactions
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`with others, taking care of themselves, and ability to stay out of jail.
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`24. BayMark utilizes a multi-disciplinary approach to treating clients with
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`OUD, addressing the physical and psychological aspects of their addiction through
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`medication assisted treatments utilizing drugs such as methadone, buprenorphine, and
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`vivitrol. BayMark also provides health assessments, individual and group counseling,
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`addiction education and relapse prevention, mental health services, case management, and
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`referrals to community resources, all on an outpatient basis at its treatment offices.
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`BayMark’s treatment offices are for-profit, commercial businesses.
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`25. BayMark treats every client under the supervision of licensed physicians
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`and licensed nurse practitioners; methadone is administered by licensed nursing staff.
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`Each office has a physician medical director.
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`26.
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`Some clients pay for methadone treatment out of pocket, some are covered
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`by Medicaid, some by other public funding, and some by insurance.
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`27. Unfortunately, there is not a magic cure for OUD. Individuals with OUD
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`are susceptible to instances of relapse. It can therefore take years of effective treatment
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`to cure someone with OUD.
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`28. There is a significant number of individuals who live in and around Parma
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`Heights suffering from OUD. There are only a couple of public offices providing
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`methadone maintenance treatment in Cuyahoga County, which are located in downtown
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`Cleveland. There currently exists an unmet need for opioid treatment programs offered by
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`BayMark in and around Parma Heights.
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`B. BayMark Leases the Property to Meet the Needs of an Underserved Community.
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`29. On or about September 29, 2017, BayMark entered into a lease agreement
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`(the “Lease”) with MKB. The Lease is for seventeen (17) years, whereby MKB agreed
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`to lease the Property to BayMark for the operation of an opioid treatment office.
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`30. The Property is located on the north side of Pearl Road near the intersection
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`with West 130th Street. The Property is approximately 80 feet wide by 150 feet deep and
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`is improved with a commercial building of approximately 6,000 gross square feet that has
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`sat vacant for approximately 8 years and continues to sit vacant.
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`31. The Property is located in the City’s Class “C” Commercial Zoning District.
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`32. The uses permitted in the Class “C” Commercial Zoning District include
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`any “commercial business not injurious to adjacent premises or its occupants thereof by
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`reason of the emission of dust, fumes, smoke, odor, noise, vibration or danger to life,
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`property, safety or health.” Parma Heights Zoning Code (“Zoning Code”) §1181.01(d)
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`(emphasis added), a true and accurate copy of relevant portions of the Zoning Code are
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`attached as Exhibit A.
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`33. BayMark’s opioid treatment office is a commercial business that will emit
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`no dust fumes, smoke, odor, noise, vibration or danger to life property, safety, or health.
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`34. There are numerous medical offices on similarly situated properties on Pearl
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`Road and on West 130th within the City’s Class “C” Commercial Zoning District.
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`35.
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`It is therefore beyond dispute that the City’s Zoning Code expressly permits
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`the use of the Property for an opioid treatment office.
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`C. BayMark Submits Its Proposed Site Plan to the City.
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`36. On or about October 13, 2017, a change of use application (the “Change of
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`Use Application”) and a preliminary site plan for BayMark’s proposed parking lot were
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`filed with the Planning Commission.
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`37. On or about October 19, 2017, the City responded that the Director needed
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`to know “the type of business that will be going into that location so we can determine if
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`there will be sufficient parking” and further advised: “A letter to the Planning
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`Commission explaining the nature of the business and [a] business plan would be
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`sufficient.”
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`38. A few days later, the City Engineer provided initial comments on the
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`preliminary site plan. BayMark submitted two alternative preliminary site plans to the
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`City in response, one with 25 parking spaces and one with 30 parking spaces.
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`39. On or about November 20, 2017, the City Engineer completed a second
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`“preliminary review” of the two alternative preliminary site plans. The City Engineer
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`noted that the preliminary site plan would have to address certain layout issues including:
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` adding a landscape area near an abutting property because he contended it
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`was a residential property (the abutting property was actually a commercial
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`property);
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` adding a loading area;
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` depicting parking spaces that were 9’ X 20’ in size; and
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`
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`illustrating the Property’s dimensions, grading, and utilities on the plan.
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`The City Engineer also opined, in error, that more than 25 parking spaces would be
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`required.
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`D. BayMark Revises the Site Plan to Satisfy the Zoning Code Requirements and
`Address the City Engineer’s Comments.
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`40. The Zoning Code only requires 24 parking spaces for BayMark’s opioid
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`treatment office based on the floor area of the building on the Property.
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`41. Medical offices need only provide “5 [parking] spaces per 1,000 sq. ft.” of
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`“floor area.” Zoning Code §1187.06.
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`42.
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`“Floor area” is defined as:
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`the total usable floor area of all the floors excluding areas devoted to
`mechanical equipment, stairways, elevators, restrooms, employees’
`lounges, public hallways and areas used for the storage and/or packaging of
`merchandise and supplies, provided, however, that such excluded area does
`not exceed twenty percent.
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`Zoning Code §1187.05(b) (emphasis added).
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`43. The exterior dimensions of the BayMark’s building on the Property is 6,000
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`gross square feet. After applying the 20% exclusion for areas devoted to mechanical
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`equipment, restrooms, employee lounge(s), public hallways and areas used for the
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`storage, there is at most, 4,800 square feet of “floor area.” Consequently, only 24 parking
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`spaces are required by the Zoning Code.
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`44. Accordingly, BayMark, responded to the City on or about December 20,
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`2017, explaining the nature of BayMark’s business, that 25 parking spaces were
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`sufficient, and that the abutting parcel was not zoned residential. A true and accurate
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`copy of the December 20, 2017 letter is attached as Exhibit B.
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`E. The City Arbitrarily Delays Consideration of BayMark’s Application.
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`45. On or about January 16, 2018, the Director notified BayMark that it was
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`required to provide responses to eight prompts, including among other things, providing
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`yet another explanation of how BayMark proposed to use the Property. Additionally, the
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`Director required BayMark provide a detailed floor plan of the building’s interior
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`prepared by a state certified design professional – even though the Commission was only
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`reviewing the preliminary site plan for exterior parking lot.
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`46. BayMark responded on or about January 26, 2018, addressing each of the
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`Director’s prompts and enclosing a preliminary site plan. BayMark noted that the
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`requested interior floor plan prepared by a state certified design professional was not
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`necessary and not required under either Chapter 1133 or 1187 of the Zoning Code.
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`BayMark explained that interior plans would eventually be prepared in connection with
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`a building permit for changes to the building’s interior, but such plans were not necessary
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`for approval of the site plan for the parking lot. BayMark included a revised preliminary
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`site plan that complied with all applicable requirements in the Zoning Code.
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`47. Between February 2018 and May 2018, BayMark responded to still more
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`letters, questions, and requests for information from the City. In turn, the City continued
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`to demand irrelevant information from BayMark, while simultaneously failing to provide
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`specific guidance as to what would be required of BayMark for the approval of its Change
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`of Use Application and preliminary site plan.
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`48. On or about May 18, 2018, the City agreed that BayMark’s preliminary site
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`plan dated April 27, 2018 was “in general conformance with the City of Parma Heights
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`requirements....” The City reiterated that it would nonetheless require BayMark to submit
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`an interior floor plan prepared by a state certified design professional and requested the
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`site plan also depict the location of drainage patterns; any new retaining wall locations, if
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`any; approximate limits of parking expansion; and the location of new storm sewer
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`infrastructure, if any.
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`49. BayMark revised the preliminary site plan to add each of the elements
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`requested by the City, and paid to have a state certified architect prepare an interior floor
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`plan to demonstrate the preliminary site plan’s compliance with the Zoning Code’s
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`parking requirements. A true and accurate copy of the floor plan and information showing
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`the square footage of excluded areas is attached as Exhibit C.
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`50. BayMark submitted its site plan application (“Site Plan Application”) and
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`floor plan on or about May 31, 2018. True and accurate copies of the Site Plan
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`Application and Change of Use Application are attached as Exhibit D (together, the Site
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`Plan Application and Change of Use Application are the “Applications”).
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`F. The Planning Commission Randomly and Arbitrarily Refuses to Act Upon or
`Approve BayMark’s Applications.
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`51. On July 2, 2018, the Planning Commission heard BayMark’s Applications.
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`During the meeting, representatives from BayMark presented 13 exhibits supporting
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`approval of its two narrow Applications. BayMark also answered numerous questions
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`regarding various business, staffing, financial, and treatment issues.
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`52. During the July 2 public hearing, the Commission read letters from “the
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`community” that opposed BayMark’s use based on unfounded fears and stigma against
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`BayMark’s clients suffering from OUD.
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`53. Despite nine months of communications between the City and BayMark,
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`and the information provided during the meeting concerning the narrow issues before the
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`Commission, the Planning Commission nonetheless advised that it was at the very
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`beginning of an “information gathering” phase. Rather than voting on the Change of Use
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`Application – resolving whether BayMark’s opioid treatment office is a commercial
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`business – or the Site Plan Application – approval of the parking lot’s layout – the
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`Planning Commission tabled both Applications “to gather further information regarding
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`this business.”4
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`54. Despite knowing the nature of BayMark’s business that would be used on
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`the Property, the City wrote BayMark in a letter dated July 16, 2018, to request even more
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`information, none of which was necessary to issue a decision on the two narrow issues
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`before the Planning Commission and was not required by the Zoning Code. The letter
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`stated:
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`The Planning Commission is requesting the following items to aid in its
`understanding of the new facility that BayMark is proposing.
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`1.
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`2.
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`The name and addresses of BayMark’s eleven similar facilities in
`development throughout Ohio, as well as the name and address of
`the existing facility that BayMark referred to during its Planning
`presentation.
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`A copy of the lease for the property that was referenced in the
`presentation.
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`3.
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`A copy of the study referenced during the presentation that led
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`4 A copy of the Planning Commission’s July 2, 2018 meeting minutes are available on the City’s
`website at: http://parmaheightsoh.gov/en-US/SYN//84593/EventTemplate.aspx.
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`BayMark to this location.
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`4.
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`5.
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`A breakdown of the payroll amounts at the proposed facility that
`were cited during the presentation.
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`An estimate of the net profit tax chargeable to the proposed
`facility.
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`Emphasis added. The Commission’s questions, on their face, establish that the Planning
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`Commission knew and understood that BayMark’s opioid treatment office is a permitted
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`“commercial business.”
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`55. Through a letter dated July 20, 2018, BayMark provided its responses to
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`each of the Planning Commission’s requests and requested its Applications be included
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`on the Commission’s August 6, 2018 meeting agenda.
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`56. The Commission did not place the Applications on its agenda. Instead, on
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`or about August 17, 2018, the Planning Commission sent BayMark a list of 41 additional
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`questions for which the Commission purported to need answers “to aid in its
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`understanding of the new facility that BayMark is proposing.” A true and accurate copy
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`of the August 17, 2018 letter is attached as Exhibit E.
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`57. As set forth in the August 17, 2018 letter, the questions directed to BayMark
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`were irrelevant, motivated by the Planning Commission’s continued discrimination and
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`bias against persons with OUD, and well beyond the scope of the established procedures
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`for considering a change of use application or an exterior, parking lot site plan. By way
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`of example only, the Planning Commission purported to need to know:
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`a. The criteria “used for determining the facility proposed by BayMark
`Health Services should be located in Parma Hts. . . . Please provide
`all available data utilized such as paramedic overdose run reports,
`emergency room reports from communities and hospitals within a 5
`mile radius of the facility proposed by Baymark Health Services.”
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`b. “Of the facilities operated by Baymark how many have been subject
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`to criminal activity such as break ins of the facility?”
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`c. “Of the facilities operated by Baymark how many have been subject
`to criminal activities such other than [sic] break ins, such as petty
`theft, etc., on the grounds of the facility?”
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`d. “Have any of the facilities operated by Baymark ever been shut down
`by the local community due to being an attractive nuisance? If yes,
`please provide details including the locations and dates.”
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`e. “How many drug dependency treatment facilities exist within a ten
`(10) mile radius of the proposed location in Parma Hts.? How many
`of these facilities are operated in conjunction with the major local
`healthcare providers . . . How many of these facilities are operated
`by independent private licensed medical professionals, charities,
`state/local agencies, etc. . . . Please provide a map of the locations of
`all the drug dependency treatment facilities within ten (10) miles of
`the proposed facility.”
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`58. Upon information and belief, the Planning Commission has not required
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`other similarly situated applicants to undergo such an “information gathering” phase
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`before the Planning Commission would act upon their applications.
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`59. Upon information and belief, the Planning Commission has not required
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`similarly situated applicants to answer questions of this extent and nature in order to
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`obtain a decision on a change of use application or a site plan application.
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`60. On or about September 14, 2018, BayMark provided the Planning
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`Commission with a written response providing answers to the Commission’s multitude
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`of requests. BayMark again requested the Planning Commission to consider and vote on
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`its Applications. A true and accurate copy of the September 14, 2018 letter is attached as
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`Exhibit F.
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`61. On or about October 23, 2018, the City arbitrarily contrived a new
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`argument, claiming for the first time that BayMark’s use was a “clinic” instead of a
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`“medical office” for purposes of calculating the requisite number of parking spaces.5
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`However, the Zoning Code does not define either a “clinic” or a “medical office.” The
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`City did not provide BayMark with any rationale or explanation for its new position. As
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`a result of this new interpretation, the City claimed that BayMark would need to provide
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`additional parking spaces over-and-above the number of spaces required for a medical
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`office.
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`62. On or about December 28, 2018, the City claimed, in error, that it had yet
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`to receive a site plan that complied with the Zoning Code and that such a site plan was
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`required for Planning Commission to consider BayMark’s Applications.
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`63. The City and its Planning Commission also claimed that BayMark’s
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`responses to the City’s litany of questions were “incomplete,” such that the Planning
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`Commission could not act upon BayMark’s Applications. The Planning Commission did
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`not and has not acted upon BayMark’s Applications.
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`64. Yet, the City and its Planning Commission have had more than sufficient
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`information to act upon the pending Applications since December 28, 2018. The Planning
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`Commission has instead continuously refused to act upon or hear the Applications in
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`contravention to the City’s established procedures.
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`G. BayMark Amends Its Lease and Supplements the Applications.
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`65. On or about June 5, 2020, BayMark and MKB entered into a First
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`Amendment to Lease amending BayMark’s Lease. The amendment limits BayMark’s
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`use of the building on the Property to 4,800 square feet.
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`66. On or about August 14, 2020, BayMark provided the City with its First
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`5 A “clinic” must provide 1 parking space per 200 sq.ft. of the clinic’s gross floor area. Zoning
`Code § 1187.06.
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`Amendment to Lease to supplement its pending Applications. A true and accurate copy
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`of the August 14, 2020 letter is attached as Exhibit G.
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`67. As a result of the amended lease, regardless of whether BayMark’s use is
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`characterized as a “medical office” or “clinic,” the maximum number of parking spaces
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`required by the Zoning Code for BayMark’s use of the Property is 24 spaces. See Zoning
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`Code §1187.06. The Site Plan Application provides 24 spaces. (Ex. G at 9.) BayMark
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`requested to have its Applications as supplemented by the First Amendment to Lease, be
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`approved at the September 8, 2020 Commission meeting.
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`68. The Planning Commission cancelled its September 8 and October 5, 2020
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`Commission meetings.
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`69.
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`In a letter dated October 1, 2020, the City informed BayMark that “[a]t this
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`time, there is a moratorium on planning activity in the region in question. The City will
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`notify you when the moratorium is lifted.”
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`70. On February 18, 2020, the City passed a moratorium on “the acceptance and
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`approval by the City and City Planning Commission of new applications for
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`development authorization and permits . . . .” for certain properties in the City. A true
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`and accurate copy of Ordinance No. 22-2020, adopting the moratorium, is attached hereto
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`as Exhibit H. On August 3, 2020, the City extended the moratorium for six additional
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`months. A true and accurate copy of Ordinance No. 105-2020, adopting the moratorium,
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`is attached hereto as Exhibit I (together, Ordinance Nos. 22-2020 and 105-2020 are the
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`“Moratoria”).
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`71.
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`Importantly, neither moratorium was retroactive. There is not any language
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`in the Moratoria that applies a moratorium to the consideration of applications that were
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`previously pending before Planning Commission or concerning uses of property that were
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`already vested by virtue of an applicant’s prior filing of a zoning application.
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`72. BayMark’s Applications remained pending before the Commission prior to
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`passage of the Moratoria. By their plain terms, neither Moratoria apply to Baymark’s
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`pending Applications. Moreover, the Property has been vacant for years, to the extent the
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`City refuses to accept any application from BayMark changing the Property’s use from
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`its existing vacant use to any other use, deprives BayMark of all economic use of the
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`Property of its rights under the Lease.
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`H. Despite the Moratoria, the Planning Commission Continues to Act Upon Other
`Applications and Seeks to Rezone BayMark’s Property.
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`73. The Planning Commission met on November 2, 2020 and considered an
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`application for approval of a self-storage business to be located at 7011 West 130th Street
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`in the City, along with other matters.
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`74. The Planning Commission met on December 7, 2020 and considered
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`approval of an application for a new development at 5889 Stumph Road. The Planning
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`Commission also considered a separate rezoning recommendation that, if enacted, will
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`rezone the Property to place additional restrictions on the future use, deve