A Ridgewood Ave. couple that has been ordered to remove their pets from the city filed a lawsuit last month in federal court seeking to invalidate the city’s ban on pit bull dogs.

The suit claims a preexisting set of state laws governing vicious dogs supersedes and voids the city’s laws. The suit accuses the city of using arbitrary methods to identify dangerous dogs and of having an unfair appeals process.

Plaintiffs Kevin and Nicole Tarquinio are seeking compensation for the emotional injury and financial losses they claim to have suffered as a result of the city’s actions. Kevin Tarquinio also claims to have experienced “a great deal of undue emotional stress which has resulted in physical injury.”

Their attorney, Kristi Haude, is also representing former Lakewood resident Leonard Shelton in his pit bull ban-related lawsuit against the city.

Sambucca and Ceaser: Two dangerous dogs?

The Tarquinios adopted two dogs in 2009. Sambucca was a one-and-a-half year old Australian Shepherd/boxer mix from the Cuyahoga County Kennel. Ceaser was a one-and-a-half year old boxer mix from a rescue group near Columbus.

On Sunday, November 7, 2010 at around 5:00 p.m., two of the Tarquinio’s children were walking the animals westbound on Detroit Ave. Someone observed them and complained to the police that they had unmuzzled pit bulls. (Listen to a condensed audio clip of police dispatch communication).

A police officer located the pair in front of Tina’s Deli, near St. Edward High School, and advised them of the complaint. The boys stated the dogs were boxer mixes. The officer followed up with the children’s father, and referred the situation to the city’s animal control officer.

Two days later, according to the Tarquinio’s complaint, Animal Control Officer Kurtis Bialosky visited their Ridgewood Ave. home and photographed the dogs. Bialosky then showed the images to fellow animal control officer and Lakewood Animal Shelter supervisor Elaine Hearn who determined both dogs were pit bulls because they displayed the “predominate characteristics” of such animals.

The Tarquinios received a letter from the city shortly thereafter advising them that unless they supplied blood-drawn DNA results provided by a veterinarian demonstrating that their dogs weren’t pit bull dogs, they would be ordered to remove them from the city.

Due to their concern about the subjective way in which the city used dog DNA test results, the Tarquinios declined to have their pets tested. The Ward 4 residents no longer walk their dogs or take them off of their property for fear of impoundment and prosecution

Tarquinio’s claims for relief

The entire text of the Tarquinio’s lawsuit can be read here (.PDF).

Here is an excerpted summary of their claims for relief:

Claim for Relief: Article XVIII, Section 3 Ohio Constitution – Violation of the Home Rule Doctrine as to Ownership of a Pit Bull

61. Ohio Revised Code 955.01, et seq. does not prohibit the ownership of a dangerous dog, vicious dog, or of a pit bull, and if fact, by virtue of its definitions and regulations regarding pit bulls, permits the ownership of a pit bull. Pursuant to O.R.C. §955.01, et seq., it is legal to own a pit bull.

63. O.R.C. §955.22 permits what Lakewood Codified Ordinance 506 forbids, and thus, LCO 506.01 and 506.03 violate Article XVIII, Section 3 of the Ohio Constitution and must be struck down as unconstitutional.

Claim for Relief: Article XVIII, Section 3 Ohio Constitution – Violation of the Home Rule Doctrine as to a Dangerous Dog On the Premises of Its Owner

70. LCO 506.04 conflicts with O.R.C. §955.22 in violation of Article XVIII, Section 3 the Ohio Constitution and must be struck down as unconstitutional.

Claim for Relief: Article XVIII, Section 3, Ohio Constitution – Violation of the Home Rule Doctrine as to Muzzle Requirement

Claim for Relief: Violation of Article XVIII, Section 3, Ohio Constitution – Violation of the Home Rule Doctrine as to Requirement of Chain and Length of Chain

Claim for Relief: Violation of the Home Rule Doctrine as to the Inclusion of “Any Dog Commonly Known as a Pit Bull” within the Definition of “Pit Bull Dog”

Claim for Relief: Violation of Fourteenth Amendment Procedural Due Process for Failure to Mandate a Hearing

99. LCO 506 violates procedural due process by failing to mandate that the owners of dogs deemed by the Lakewood Defendants to be “pit bull dogs” be given a hearing, or at least given notice that they may request a hearing, prior to a removal order, impoundment, and/or the issuance of criminal citations.

Claim for Relief: Violation of Fourteenth Amendment Procedural Due Process for Failure to Provide Timely Notice and a Meaningful Opportunity to be Heard

108. As such, the practice and policy of the Lakewood Defendants in providing dog owners with such short notice of a hearing deprives the dog owner of timely notice and of a meaningful opportunity to be heard in violation of their procedural due process rights.

Claim for Relief: Violation of Procedural Due Process – Burden on Dog Owner to Prove Dog is not a “Pit Bull Dog”

114. Based on the failures set forth above, LCO 506 encourages subjective and arbitrary enforcement which violates the procedural due process rights of Plaintiffs and Other Dog Owners.

Claim for Relief: Violation of Fourteenth Amendment Substantive Due Process – Unconstitutionally Vague on its Face as to Definition of a “Pit Bull Dog”

127. For the reasons set forth in Paragraphs 116-126, LCO 506 is impermissibly vague in all of its applications and unconstitutionally vague on its face in that it fails to define the criminal offense with sufficient definiteness that an ordinary person can understand what conduct is prohibited and fails to guard against arbitrary, subjective, discriminatory, and unconstitutional enforcement.

Claim for relief: Violation of Fourteenth Amendment Substantive Due Process as to Ban on “Pit Bull Dogs” and Severe Regulations on “Pit Bull Dogs”

135. If Plaintiffs’ right to own and keep Plaintiffs’ Dogs is not a fundamental right, LCO 506 still violates substantive due process because there is no rational relationship between the outright ban and other regulations and restrictions on “pit bull dogs” set forth in LCO 506 for the same reasons set forth in Paragraphs 132-134.

136. Thus, LCO 506 violates the substantive due process rights of Plaintiffs and Other Dog Owners.

Claim for Relief: Violation of Fourteenth Amendment Substantive Due Process as to Ban on Mixed Breed Dogs

140. Banning a mixed breed dog, or any dog for that matter, simply because of the way it looks does not serve a compelling or legitimate government interest at all, and is certainly not narrowly tailored to serve a compelling government interest and is not rationally related to serve a legitimate government because: (a) there is no evidence that mixed breed dogs that look like the stated breeds pose a threat to public safety; (b) no evidence of bites to residents by such mixed breed dogs; (c) the vast majority of evidence in the dog breed identification arena concludes that the which breeds are present in a particular mixed breed dog cannot be gleaned with any certainty by simply looking at the physical characteristics of that dog, which is exactly how Defendant Lakewood determines the breed(s) present in mixed breed dogs under LCO 506; and (d) evidence reveals that the vast majority of dogs initially deemed by Defendant Lakewood to be “pit bull dogs” under LCO 506 that were later DNA tested revealed that Defendant Lakewood was incorrect in its initial determination.

141. Thus, LCO 506 violates the substantive due process rights of Plaintiffs and Other Dog Owners.

Claim for Relief: Injunctive Relief – Preliminary and Permanent

152. Granting Plaintiffs’ request for a preliminary injunction will not only benefit Plaintiffs but will benefit all residents of Defendant Lakewood whose dogs have been or will be deemed “pit bull dogs” under LCO 506. Specifically, an injunction will: (a) stop the Lakewood Defendants from enforcing an ordinance which so clearly violates the Home Rule Doctrine; (b) stop the Lakewood Defendants from enforcing the ordinance in an unconstitutional manner by intentionally failing to advise residents that a hearing can be requested on the issue of whether a dog is a “pit bull dog”; (c) stop the Lakewood Defendants from enforcing the ordinance in an unconstitutional manner by failing to provide a hearing and failing to provide timely notice and a meaningful opportunity to be heard; (d) it will stop the Lakewood Defendants from impounding and/or filing criminal charges against residents of Lakewood who own mixed breed dogs that arguably look like “pit bull dogs” but are not; (e) stop the Lakewood Defendants from placing the burden to prove that a dog is not a “pit bull dog” on the dog owner; and (f) stop the Lakewood Defendants from enforcing an ordinance that violates the procedural and substantive due process rights of citizens.

Judge asked to issue a temporary injunction

The Tarquinios have asked the judge for a preliminary and permanent injunction against the city ordering that all enforcement of the pit bull ban be stopped while the lawsuit is pending. They are also seeking compensatory damages, and attorney’s fees.

The city has denied any wrongdoing.

The city’s effort to organize both a weekday and a weekend farmers market has been met with disinterest from the North Union Farmers Market, the group that has managed the Wednesday farmers market near Kauffman Park each summer for the last decade.

It was among the three organizations that responded to the city’s call for proposals from vendors interested in the unified management and operation of two summertime farmers markets.

Each group to respond asked for $5,000 to help with operating expenses, but only the upstart Lakewood Farmers Market, which last year operated a small weekend market near City Center Park, offered a proposal with hours on Wednesdays and Saturdays.

City officials have in the past expressed dissatisfaction with the limited weekday schedule of the Kauffman Park operation, aimed at senior citizens, homemakers and people who work in Lakewood, and sought a weekend slot more suited to the leisure time of the city’s other residents.

The city is currently reviewing all of the proposals, and is expected to a selection soon.

Parameters of the city’s farmers markets proposal request

In its request for proposals, the city invited individuals and organizations to submit their interest in managing and operating the farmers markets for 15-20 weeks between June and October during the Ohio growing season, with two additional one-year renewal options.

The program manager would be expected to secure 15 vendors and operate the markets for three hours on both Wednesday and Saturday. The preferred venues would be the Kauffman Park parking lot and City Center Park (formerly known as Sinagra Park).

In addition to onsite management, the program manager would also be responsible for establishing a committee to assist with the planning, set-up, and marketing of the events.

North Union Farmers Market: Not willing to expand service to weekends

The Shaker Square-based North Union Farmers Market operates six summer farmers markets throughout the county. In addition to its Lakewood location, it operates at the Cleveland Clinic (Wed., 10:30 a.m. – 1:30 p.m.), Cleveland State University (Thurs., 11:00 a.m. – 2:00 p.m.), Crocker Park (Sat., 9:00 a.m. – 1:00 p.m.), Shaker Square (Sat., 8:00 a.m. – Noon), and Chagrin Falls (Sun., 9:00 a.m. – 1:00 p.m.).

It has operated the market at Kauffman Park since 1998, and estimates it has served 1,500 individuals there annually. The group has a three member paid staff. Tiffany Leeper, its Lakewood manager, has three years of experience in the position.

In its proposal, the North Union Farmers Market suggests it would manage a farmers market at Kauffman Park each Wednesday from June 1st to September 14th, between 10:00 a.m. and 1:00 p.m. and would have an average of 20 vendors each week.

In declining to run a weekend market it wrote:

“For 2011, our organization lacks the capacity to operate an additional weekend market. Planning for our markets begins the year prior to opening in November when we set dates for opening and closing and distribute contracts to vendors.”

The North Union Farmers Market’s total budget for Kauffman Park is $14,000. It expects to earn $9,000 in vendor fees, and asks the city to contribute the $5,000 difference.

Lakewood Farmers Market: Seeks to expand to Wednesdays

Last year, with support from the city and local businesses, three residents organized a Saturday farmers market in the parking lot near City Center Park. Smaller than the Kauffman Park market, it featured Lakewood-produced foods and goods, and was geared toward encouraging entrepreneurship within the city.

Co-founders Whitney Gersak and Jennifer Kelley have submitted a proposal for the Lakewood Farmers Market, as their group is known, to return to City Center Park this summer with 15 vendor booths and expanded operations to include Wednesdays from 10:00 a.m. to 1:00 p.m.

It will continue with the “We’re local, We’re Lakewood” concept, and attempt to provide a ‘hyper-local food’ business incubator for Lakewood residents.

The Lakewood Farmers Market’s total budget for City Center Park is $14,633. It expects to earn $1,800 in vendor fees, $6,250 in grants, and $6,000 in sponsorship fees, including a $5,000 payment from the city.

Lakewood Earth and Food Community: Will accept any offers of assistance

The proposal submitted by the all-volunteer organization Lakewood Earth and Food Community (LEAF) reads like it was thrown together at the last minute.

Ann Stahlheber, LEAF board member and market manager, offered somewhat of an explanation in her cover letter:

“I understand that the proposed project is not an exact fit to the request, we hope that some assistance may be available for our market. If funding is not available for our proposal, we are still very interested in receiving in kind support from the City.”

LEAF serves as a distributor for a community-supported agriculture program in which participants pay an upfront cost for regular deliveries of locally grown produce during the growing season.

The LEAF program was recently authorized to accept Supplemental Nutritional Assistance Program benefits (formerly known as food stamps). To facilitate the transactions involving the benefit assistance, LEAF needs to acquire the infrastructure capable of processing electronic benefit transfers. It is seeking $5,000 from the city in order to buy the equipment and market the program.

An East Side developer who has defied the abysmal real estate market with successful projects in Rocky River, Little Italy, and Cleveland Heights wants to construct 14 luxury townhomes on the site of a 2.6 acre Edgewater Dr. estate.

The project is in the preliminary stages and still must clear several hurdles, including the city zoning code that limits to ten the number of homes that can be built on the property.

A group of about 35 citizens gathered on Thursday evening at Emerson Elementary School to listen to the developer and city officials describe the broad outline of the proposal.

Despite the cool reception the presentation received from many of those in the audience who live near the Edgewater estate, the city’s mayor said he is taking the project “very seriously.” It would be hard for him to ignore it – his backyard is a mere seven feet away from the prospective redevelopment site

City administration noncommittal on the project

William and Marla Heideloff, who owned 13474 Edgewater Dr. for 30 years, turned the deed over to their mortgage lender three months ago due to “unfortunate circumstances,” according to interim Mayor Michael Summers.

Summers told the crowd that Park View Federal Savings, the current owner, is “very motivated” to dispose of the asset due to its need to clean up its portfolio of delinquent and nonperforming loans. The bank has been scrutinized by the federal Office of Thrift Supervision and ordered to improve its finances.

The house has been vacant and for-sale-by-owner for the last five years. Summers claimed the Edgewater Dr. house is in foreclosure, but there is no evidence of a current or prior foreclosure. The Heideloffs had been one half-year behind on property taxes, although the bank rectified the delinquency.

Acting Director of Director of Planning and Development Dru Siley said he and the mayor first met with the developer a month ago. “This is the very beginning,” he said. “It fact, this might be a little premature.”

Siley showed a map depicting how several of the large parcels on Edgewater Dr. that once belonged to estates and stretched from the street to the lake have been subdivided into short streets like Kirtland Lane and Edgewater Lane.

The developer has proposed dividing the former Heideloff parcel into lots of 9,000 square feet. They would be 500 square feet larger than the average lot size on adjacent Homewood Dr. and 3,500 square feet less than the average lot size on adjacent Wilbert Rd, where the mayor lives.

As the city’s chief planner, Siley told the crowd his job is to act in the “long-term best interest of the community.” He indicated he had not yet taken a position on the acceptability of the development. “We’re not here to sell you on the development,” he said.

The Townhomes of Edgewater: A ‘higher level of living’

Developer Andrew Brickman came to the meeting with the opposite agenda. “I am here to sell you on this development, I suppose,” he said to the gathering of residents.

Brickman’s company, Abode Living, has teamed with Lakewood-based Dimit Architects to transform the former Heideloff Estate into The Townhomes of Edgewater. Brickman’s lender is Parkview Federal Savings, the current owner of the property. He has an option with the bank to purchase the estate contingent upon gaining zoning variances from the city. He also has the right to match any bid made on the property.

The Warrensville Heights native, who had previously lived in Los Angeles and Boulder, CO before moving back to town, has been in the real estate business for 30 years. He gave a PowerPoint presentation accented with his recent successes, including the luxury townhouses in the Rocky River Valley that have sold at prices between $687,000 and $739,000.

Brickman said the goal of his proposed Lakewood development would be to create a “higher level of living.” It would be targeted at a mix of people, including empty-nesters and busy professionals. “It’s for people who don’t want to take care of a house,” he said, referring to the townhomes’ no-maintenance exteriors – a key benefit of the project.

Mayor: ‘Single floor living’ is needed in city

Brickman indicated the 14 detached 1,800 to 2,000 square foot single-family Craftsman-style townhomes would be priced beginning at $379,000. All of the residences would feature a first-floor master bedroom with an optional loft and finished basement. The homes would have an attached two-car garage and a shared driveway.

Brickman said once he gets the necessary zoning variances and acquires the property, it could be built in as little as a one-year timeframe. Anything over a year and he would “go from making a lot of money, to a little money”

A new 19 foot-wide road would be constructed to connect Edgewater Drive to Cliff Dr, which is now a dead-end street. The development would utilize geothermal energy and all of the utilities would be buried.

Brickman showed what he emphasized were preliminary architectural renderings, floor plans, and site layouts. He did not provide copies of the material to attendees.

Six townhouses would be built on lots 60 to 70 feet wide on both sides of the street. A common area with an unobstructed view of Lake Erie would be created at the northernmost end of the road. On either side of the common area would sit two high-value townhouses with a modernistic architecture in sharp contrast to the 12 Craftsman-style homes.

Mayor Summers praised the “single floor living” concept. “The demand for this kind of lifestyle is huge,” he said. Summers noted the dearth of housing options for the city’s aging population whom have become physically less capable of climbing steps and maintaining older houses. He mentioned that several of his Lakewood friends have been forced to relocate to cities like Strongsville in order to find suitable alternatives for their needs.

Residence and carriage house would be demolished

One disadvantage of Brickman’s development proposal would be the loss of a piece of Lakewood’s historical character. To make room for the townhomes, the property’s existing century-old home and accompanying carriage house would be demolished.

Brickman tried to find a way to include them in the project, but said, “It doesn’t make sense financially.” He felt the room sizes in the primary residence were too small to work with. “You gotta redo every single square foot of that house,” Brickman observed. He also noted that a recent burst water pipe caused $30,000 in damage to the carriage house.

The realtor who is working with the bank to find a buyer for the property was not present at the meeting, but said afterward there has been a good amount of interest in the house from individuals who want to restore and preserve it.

“There’s nothing wrong with that house that reducing the price won’t fix,” said Howard Hanna real estate agent Gloria Hardington. “The price is just too high. It needs repairs for sure. It’s a 100-year old house.” The current list price is $994,900.

In addition to the need for a new furnace, the condition of the basement is the most immediate concern, according to Hardington. It needs to be waterproofed. The house received a new roof in 2010.

Hardington said she has one prospective buyer, in particular, who is capable and “very anxious” to acquire and preserve the home. “We were sort of put on the back burner because the builder came in,” she said, referring to Brickman’s agreement with the bank that gives him the option to purchase the property if he can secure zoning variances from the city.

Neighbors offer mixed reaction to preliminary drawings of development

Upon viewing preliminary renderings of the townhouse architecture and development layout, certain common concerns were expressed by those at the meeting.

Karen, who lives on a street adjacent to the estate, said the plans were nice, but not appropriate for the location. “It’s way too dense for our neighborhood,” she said. “It looks too development-like.”

In addition, she found the style of architecture to be inconsistent with the surrounding neighborhood. “It’s not why we bought in Lakewood,” she said. “To me, it looks like it was dropped from the sky.”

A 52-year resident of Edgewater Dr. also thought the development layout looked cramped. “You have too many houses on too little land,” she said, and warned of the dangers of building structures too close to the cliff overlooking Lake Erie. Over the years, she said she’s lost 30 feet of property to erosion.

Another citizen was more direct in expressing his thoughts on the renderings. “We lose the character of what Lakewood is all about,” he said. “This is a travesty in my neighborhood as far as I’m concerned.”

The modern architecture of the two townhomes closest to the lake was not well received by one man. “Those are just ugly,” he said. Rather than serving as complimentary visual anchors for the street, he found them to be “jarring.”

“I want to preserve the integrity of these neighborhoods,” Brickman responded. He reminded everyone the plans are preliminary and could change. “I’m open to whatever will sell the fastest,” he said.

One audience observer called the plans “very imaginative,” and liked the unobstructed visual access to the lake. He reminded everyone that residents complained about the Edgewater Lane project and it turned out to be much nicer than what it replaced.

Another person said he wasn’t bothered by the project’s density because some of the surrounding streets already have compact layouts that create a “cozy village-type atmosphere.”

There were a few questions about the setback between the proposed development and the existing streets. Project architect Scott Dimit said there would be a seven-foot planted buffer between new and old. A woman whose property backs up to the existing carriage house volunteered that its closeness never bothered her.

Park space unlikely; property tax abatement possible

With a half-decade long period of vacancy at the former Heideloff Estate, neighbors on the adjoining streets were able to take certain liberties with the property and enjoy it as what Siley, the city’s top planner, described as a “passive park for the neighborhood.”

A meeting attendee queried Siley about the possibility of the city snapping it up for use as a park. Siley flatly rejected the idea. “A park isn’t the right use” for the land, he said. He added it was unlikely the city could afford such an endeavor, even if it was interested in the idea.

Someone wondered what level of property tax abatement might be bestowed upon the potential new properties. Brickman left the door of possibility open, and said “under no circumstances” would the tax amount be any less than the current $17,476 the parcel generates.

Mayor takes ‘mercenary’s view’ of deal

Mayor Summers surprisingly did not make any critical remarks of the project that stands to harpoon the relative privacy and calm that surrounds his personal residence.

Even though at the start of the meeting Siley said that the city hadn’t taken a position on the development yet, it sounded like Summers had at least a few toes in the pro-townhouse camp.

Taking a look at the deal from the perspective of the mayor’s office (which he referred to as the “mercenary’s view”), Summers pointed out to the audience that it would bring in an increased amount of property and personal income taxes. The additional money would be welcome to a city facing the prospect of a $1.5 million reduction in state funding in the 2011-2012 fiscal year with no letup in sight.

The city “will be scratching and clawing to keep service at the levels they’re at now,” he said. “This is a very big balancing act.”

To add another dimension to the conversation, Summers said that every new house built in the exurbs essentially means one less house will be purchased in an inner-ring suburb like Lakewood. He estimated 200 to 300 houses in the city face “rejection” each year and begin on the path of neglect and decay.

Taking into account the totality of the circumstances surrounding the city’s health, the mayor cannot easily dismiss growth opportunities. “We’re obligated to take this very seriously,” he said.

One gentleman asked for a show of hands to see who preferred to see the house rehabilitated and preserved rather than demolished. About half of the people in the room raised their hands. “What white knight is going to come?” Summers wondered.

The mayor reiterated that the bank that holds house is “under a lot of pressure,” although the home is still on the market and available to a buyer for the right price. “It’s a complex view,” he said.

Developer ‘extremely pleased’ with meeting, declares interest in St. James

Developer Andrew Brickman said he was “extremely pleased” with the results of the public meeting, and encouraged by the residents who approached him afterwards and expressed support for the project.

Brickman said the style of residence he wants to build is one “desperately needed” by the city of Lakewood. “I feel that the planning director and mayor feel the same way,” he said.

The developer said he got the sense that some residents have been “spoiled” for the last several years by the open park space in their backyards, and understood why they might be opposed to change.

Brickman said he wants to get a deal done, and isn’t interested in a protracted fight. “There are too many other opportunities, particularly in inner-ring suburbs,” he said.

Having successfully redeveloped a historic church in Cleveland Heights, he’s been working with Catholic Diocese of Cleveland officials and examining their inventory of surplus churches.

Brickman is keeping an eye on the status of Lakewood’s largest vacant church, “I’m extremely interested in St. James,” he said.