Buckeye Community Hope Foundation v. City of Cuyahoga Falls

ORDER

The above-captioned matter came before this Court on the filing of a Complaint by Plaintiffs Buckeye Community Hope Foundation (“Buckeye”), Cuyahoga Housing Partners, Inc., Buckeye Community Three L.P., and the Fair Housing Contact Service, in which they requested injunctive relief from what they alleged to be violations of rights guaranteed by the Constitution’s Due Process and Equal Protection Clauses, as well as violation of those rights protected by federal fair housing laws. On November 19-21, 1996, the Court conducted a hearing and took evidence regarding Plaintiffs’ request for a preliminary injunction. Ultimately, the Court approved an injunction stipulated to by the parties which enjoined the Defendant Summit County Board of Elections from certifying the results of a referendum concerning the Plaintiffs’ ability to build low-income housing on land in Cuyahoga Falls. (Docket #68.) However, because the Court found there to be no showing of irreparable harm to Plaintiffs, their request for an injunction ordering the Defendant City of Cuyahoga Falls to issue building permits was denied. (Docket # 78.) In the Order denying Plaintiffs’ preliminary injunction request, the Court deferred consideration of the merits of the underlying causes of action, concluding that such consideration would be more appropriately addressed after evaluating the Defendants’ motions for summary judgment. The Court then referred those motions to Magistrate Judge James D. Thomas for a report and recommendation.

Presently before the Court is the report of the Magistrate, in which he recommends that this Court grant the motions for summary judgment filed by Defendants the City of Cuyahoga Falls, Mayor Don Robart, Clerk of City Council Gregg Wagner, and Chief Engineer Gerald M. Dzurilla. While Defendants largely agree with the Magistrate’s analysis or conclusions, Plaintiffs’ objections are numerous and weighty. (See docket # s 88, 89, 90.) Since the issuance of the Magistrate’s Report and Recommendation, this Court requested the parties to address three questions raised by their briefs and objections, (docket # 94), and they readily complied (docket # s 95 & 98). The issues having thus been well-framed, the Court now issues its opinion.

I. Background. 1

There are two areas of background relevant to the consideration of the pending motions: (1) the facts leading up to the proposed development, referendum and filing of this action; and (2) the procedural context of this action. The two areas are discussed below. Initially, however, one procedural matter warrants an introduction here.

As mentioned above, this Court conducted a three day hearing on Plaintiffs’ motion for preliminary injunction in November of 1996. This was the second hearing on Buckeye Community Hope Foundation’s request for injunctive relief; a preliminary injunction *1293 hearing was also held in the state action. Plaintiffs’ motion for injunctive relief filed in this Court was denied on December 13, 1996. (Docket # 78.) On the motion of Plaintiffs, the transcript of those proceedings has been accepted for consideration in connection with the pending motions for summary judgment. 0See Order of January 22, 1997, Docket # 84.) The Magistrate relied on portions of the three volume transcript in his report, and this Court will also consider that evidence insofar as it is relevant to the motions now before the Court.

Plaintiff Buckeye Community Hope Foundation (“Buckeye Community Foundation”) is a not-for-profit 501(e)(3) corporation. (Hearing Transcript, November 19, 20, and 21, 1996 (“Tr.”) at pp. 11-13.) It has as its purpose the development of affordable housing through the use of low income housing tax credits. (Id.) Mr. Boone is the President of the Board of Trustees for Buckeye Community Foundation. (Tr. at p. 11.)

Prior to the development of the complex in question here, Buckeye Community Foundation developed at least four other affordable housing complexes in Ohio. (Tr. at p. 15.) As outlined at the hearing before this bench by Mr. Boone and the Executive Director for Buckeye Community Foundation, Mr. P. Barno, Buckeye Community Foundation acts as a developer for each project. (Tr. at p. 389.) For each project, a separate limited partnership is formed as the investment vehicle to sell the tax credits. In this case, the specific limited partnership is Plaintiff Buckeye Community Three, L.P. (“Buckeye Three Limited”). (Tr. at p. 23.) The limited partnership is the owner of the land and, once it is completed, the development. As the project is developed, Buckeye Community Foundation advances fees and expenses until all the financing, including the tax credits, are finalized. 2 Once the complete financial package is arranged and finalized, Buckeye Community Foundation is reimbursed for its expenses in developing the project. Buckeye Community Foundation also receives a “developer’s fee” for its services. In this case, the expected fee is $175,000.00. (Boone Dep. at p. 120; Tr. at p. 381.)

To protect each development and its investors, Buckeye Community Foundation forms a separate corporation to act as the general partner for the limited partnership. (Tr. at pp. 22-23.) In this case, Plaintiff Cuyahoga Partners, Inc. (“Cuyahoga Partners”), a for-profit corporation, was formed to serve as the general partner of Buckeye Three Limited. 3 (Tr. at p. 23.) Mr. Boone is the president of Cuyahoga Partners. (Boone Dep. at pp. 6-7.) Buckeye Community Hope Foundation is a fifty-one percent owner of Cuyahoga Partner, and the, other forty-nine percent is owned by Little Country Community, Inc., another 501(c)(3) corporation. (Tr. at p. 396.) Thus, Buckeye Community Foundation controls Cuyahoga Partners which in turn controls Buckeye Three Limited. 4 (Tr. at pp. 23, 389-390.)

Turning to the events leading to the underlying dispute, Mr. Boone testified that he first contacted the Mayor for thg City of Cuyahoga Falls, Don Robart, in the summer of 1995 about the possibility of developing a low income housing complex in Cuyahoga Falls. 5 Mr. Boone testified that Hearing Exhibit 23 represents a letter from Buckeye Community Foundation to Mayor Robart dated June 7, 1995. In the letter, Buckeye Community Foundation expressed an interest in developing the land “under the low income housing tax credit program.” (Tr. at pp. 20-21.) Mr. Boone indicated that this letter was sent before the purchase of the *1294 land for the project. (Tr. at p. 21.) According to Mr. Boone, the Mayor expressed no problems about the proposed development at that time. (Id.)

The real property, located on Pleasant Meadow Boulevard, was purchased on June 12, 1995. (Complaint at ¶ 13.)

Mr. Boone testified that he started working with Cuyahoga Falls Planning Director, Louis Sharpe, in late August/September of 1995 on the details of the development. (Tr. at pp. 30-31.) The financing for the project was secured in November of 1995. (Tr. at p. 21.)

In January, 1996, Buckeye Three Limited, filed an application for a “site plan review” for the seventy-two unit apartment complex in the City of Cuyahoga Falls. (Complaint at ¶ 15.)

On February 21, 1996, the “site plan” was submitted for approval at a meeting of the Planning Commission for Cuyahoga Falls. (Complaint at ¶ 17; Tr. at p. 33.) In connection with the Planning Commission’s meeting, Planning Director Sharpe prepared a Staff Summary of the site plan. (See Hearing Exhibit 11; Tr. 128.) This summary recommended approval of the site plan subject to approximately nine conditions agreed to by My. Boone. One of the conditions required the developers to erect a fence on one side of the property before the building permit for the apartment complex could issue.

The site plan, including the conditions, was unanimously approved by the Planning Commission at the February 21, 1996 meeting. 6 (Complaint at ¶ 17; Tr. at p. 35.) The Planning Commission’s recommendation then had to be submitted to and approved by City Council. (Id.) Mayor Robart did not attend the February 21, 1996, Planning Commission meeting. (Tr. at pp. 72-73.)

On March 4, 1996, the Planning Commission’s recommendation on the site plan was addressed at a City Council meeting. (Tr. at p. 35.) Mayor Robart attended this meeting. (Tr. at p. 36.) According to Mr. Boone, Mayor Robart “came out against” the project during this meeting and suggested that the issue be tabled. (Tr. at p. 39-40.) The issue was tabled. 7 (Tr. at p. 40.)

Another meeting of City Council was held on March 18, 1996. (Tr. at p. 40.) From a review of the materials filed in connection with the motions, one can conclude that this meeting was long and emotional. The minutes reflect that the meeting lasted from 6:15 p.m. until 8:45 p.m. and that several residents expressed their concerns over the development of the complex. Mayor Robart attended the March 18, 1996 meeting and expressed his views in a lengthy statement. (Hearing Exhibit 24 at pp. 12-14.)

According to Mr. Boone, Mayor Robart recommended rejecting the project at the March 18, 1996 Council meeting. (Tr. at p. 43.) The issue was tabled again. Mr. Boone testified, “I believe they said the reason was because they wanted the law department to provide a legal opinion if there was any possible reason, the way it was put, that they could turn us down legally.” (Tr. at p. 43.) Mr. Boone acknowledged that he raised the Fair Housing Act at the March 18, 1996 meeting. (Tr. at p. 60; Boone Dep. at p. 16.)

Another Council meeting occurred on April 1, 1996, and the site plan was approved by vote of six to three, with two abstentions. (Complaint at ¶ 19; Tr. at p. 43.) The City Council’s approval was expressed in the form of Ordinance No. 48-1996. Ordinance No. 48-1996 states, in pertinent part:

That this City Council approves the plan for development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Plan *1295 ning Commission as per the plans and stipulations contained in Planning Commission File P-6-96-SP.

(Hearing Exhibit # 8, Section 1.)

Mr. Boone testified that they applied for the building permit about two days after the site plan was approved. (Tr. at p. 44.) Upon direct questioning by the Court, Mr. Boone stated that the application was made on either April 3 or 4. (Id.) The complaint alleges that the building permit was sought on or about April 5, 1996. (Complaint at 1129.)

Mr. Boone testified that they received the building permit for the fence in April, 1996. (Tr. at pp. 46-48.) Mr. Boone testified that work on the fence did not begin “because it became pretty obvious that we are in a fight, and I wasn’t about to — first of all, we don’t have the funds to put up a $70,000 fence. If we know we are going to receive with assurity the building permit to build the rest of the project, I — that’s basically the reason.” (Tr. at p. 48.) Mr. Boone further stated that he did not proceed with building the fence because “the rumors of a referendum were very prevalent.” (Tr. at p. 92.) He testified, “I felt the reasonable thing to do was to delay the construction of the fence until I was assured we were going to get a building permit.” (Tr. at p. 92.)

Parallel to the site plan approval process, a referendum effort was proceeding. (See Complaint at ¶ 24.)

Mr. Lee Minier is a life long resident of Cuyahoga Falls, Ohio. (Tr. at p. 266.) He was called by Plaintiffs to testify at the preliminary injunction hearing. Mr. Minier testified that Hearing Exhibit 19 is a notice for meeting on Tuesday, April 9, 1996 to discuss “taking the ISSUE OF A 72 UNIT HOUSING DEVELOPMENT ON PLEASANT MEADOW BLVD. to the vote of the people of Cuyahoga Falls in November.” (Hearing Exhibit 19) (upper ease print in original) (Tr. at p. 278-279.) The organizing group, as identified on Hearing Exhibit 19, was the “Citizens for the Preservation of Voters Rights.” (See Exhibit 19.)

Mr. Minier attended the April 9, 1996 meeting. The Mayor also attended the meeting. (Tr. at p. 279.) The Mayor spoke at the meeting and stated that he supported the referendum effort. (Id.) According to Mr. Minier, no City of Cuyahoga Falls officials were asked to sign the referendum petitions. (Id.)

Mr. James Kuzmik, a “tester” for the Fair Housing Advocates Association, also attended the April 9, 1996 meeting. (Tr. at p. 291.) According to Mr. Kuzmik, the director of Fair Housing Advocates Association called him and asked him to attend the meeting. 8 (Id.) Mr. Kuzmik testified that the referendum process was discussed at this meeting. Mr. Kuzmik was asked, “were there any statements made by members of the Citizens for the Preservation for Voter [Rights] dealing with children?” Mr. Kuzmik said yes. (Tr. at p. 293.) Mr. Kuzmik said he did not recall any one person leading the meeting. (Tr. at p. 296.) On cross examination,' Mr. Kuzmik stated that he did not hear Mayor Robart make any discriminatory remarks about African Americans or children at the April 9, 1996 meeting. 9 (Tr. at p. 300.)

On or about April 29 or 30, 1996, a referendum petition was submitted to the Clerk of Council, Gregg Wagner. 10 (Complaint at ¶ 25; Wagner Affidavit at ¶ 5.) The Board of Elections approved the referendum petition on May 1, 1996. (Complaint at ¶¶ 25 and 26; Wagner Affidavit at ¶ 5.)

On May 1, 1996, the state action was fileto enjoin the referendum process under Ohio law. The case was captioned: Buckeye Community Hope Foundation, et al. v. City of Cuyahoga Falls, et al, Case No. CV96-051701 (Summit County) (Murphy, J.). The named plaintiffs were Buckeye Community Foundation, Cuyahoga Partners, and Buck *1296 eye Three Limited, three of the four named plaintiffs in this action. (See “Complaint for Temporary Restraining Order Declaratory Judgment Injunctive Relief,” Docket # 33, Exhibit C.) The state court complaint named as defendants: (1) City of Cuyahoga Falls; (2) Cuyahoga Falls City Council; (3) Gregg Wagner, Clerk of City Council, City of Cuyahoga Falls; and (4) Summit County Board of Elections. (Docket #33, Exhibit C.) With the exception of the Cuyahoga Falls City Council, the same defendants have been named in this action.

On May 15, 1996, Judge Murphy conducted a hearing on plaintiffs’ request for preliminary injunction. (Docket # 33, Exhibit F.) At the hearing, plaintiffs presented the testimony of three witnesses: (1) Mr. Boone; (2) Joseph James Orel, President of JJO Construction, the contractor for the project; (Docket # 33, Exhibit F, p. 13); and (3) Roy Lowenstein, a representative of Ohio Capital Corporation for Housing. (Docket # 33, Exhibit F, p. 17.) Mr. Boone and Mr. Orel also testified at the hearing in November, 1996. 11 (Tr. at pp. 11-106; pp. 109-121.) The plaintiffs in that action were represented by Edward G. Kramer, who represents Plaintiffs in this action as well. (Docket # 33, Exhibit C.)

On May 31, 1996, Judge Murphy denied the plaintiffs’ motion for preliminary or permanent injunction. 12 (Docket # 33, Exhibit B.) The decision and judgment was “on the merits.” (Docket # 33, Exhibit F, pp. 48-49; see also, Attachment to Docket # 77- — Ninth Appellate District’s December 11, 1996 opinion at p. 3 (“The parties agreed to consider the hearing as a trial on the merits of the case.”)).

On June 20, 1996, Mr. P. Gilbertson Barrio, Buckeye Community Foundation’s Executive Director wrote to the City of Cuyahoga Falls and renewed his request for issuance of a building permit. (Hearing Exhibit # 16.) On June 26, 1996, Mr. Gerald M. Dzurilla, the City Engineer for Cuyahoga Falls, sent a letter to Mr. Bamo and indicated that he could not issue the building permit in light of the pending referendum. 13 (Complaint at ¶ 31; Hearing Exhibit # 15.)

Plaintiffs filed the present action on July 5, 1996, naming as Plaintiffs the three plaintiffs in the state court action, plus one new plaintiff, the Fair Housing Contact Service. The Defendants in this action are: (1) City of Cuyahoga Falls; (2) Don Robart, in his individual and official capacity as Mayor of the City of Cuyahoga Falls; (3) Gregg Wagner, in his official capacity as Clerk of City Council; (4) Summit County Board of Elections; and (5) Gerald M. Dzurilla, in his official capacity as Chief City Engineer. (Docket # 1.) The new Defendants, i.e., those not named in the prior state suit, are Mayor Robart in his individual and official capacity, and Mr. Dzurilla in his official capacity.

In contrast to the complaint filed in state court, the complaint filed in this Court is based upon federal law. The Plaintiffs allege violations of 42 U.S.C. §§ 3601 et seq., 3604, and 3617, 42 U.S.C. §§ 1981 and 1982 (Docket #1, ¶ 37); the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 (¶¶ 39, 44); and the Equal Protection Clause of Fourteenth Amendment and 42 U.S.C. § 1983 (¶41). Plaintiffs ask this Court to grant them declaratory judgment, to grant an injunction ordering the Defendant City and its officers and agents to issue building permits to the Plaintiff Developers, *1297 to enjoin the Defendants from imposing additional burdens on the planning and construction of the development, and to order Defendants to pay compensatory and punitive damages and costs. (Docket # 1, part VI, ¶¶ 2-7.) Originally, the complaint also sought to enjoin the Defendants from placing the referendum on the ballot, (docket # 1, part VI, ¶ 3), however, the referendum has already been placed on the ballot and voted upon by the electors of Cuyahoga Falls, therefore that prayer for relief is moot and no longer before the Court. 14

II. Standard of Review.

The Court of Appeals for the Sixth Circuit has summarized the standard of review governing motions for summary judgment under Federal Rule of Civil Procedure 56 as follows:

Summary judgment is appropriate where “there is no genuine issue of material fact ... and the moving party is entitled to judgment as a matter of law.” [The] court must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party.

The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim.

“By its very terms, this standard provides that the existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. If the disputed evidence “is merely colorable or is not significantly probative, summary judgment may be granted.”

LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993) (citations omitted). With this standard in mind, the Court will address the Defendants’ present motion.

III. Res Judicata.

All Defendants argue that the Plaintiffs’ instant causes of action are barred by the doctrine of res judicata. As the Magistrate Judge explained, the doctrine of res judicata or claim preclusion “refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of the determination that it should have advanced in an earlier suit.” (Docket #86, at 17 (quoting Barnes v. McDowell, 848 F.2d 725 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 780 (1989)).) The Supreme Court in Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), applied res judicata to a claim, such as some of those now before this Court, brought pursuant to Section 1983. After having pursued causes of action for breach of contract and wrongful interference with her employment contract in state court, the plaintiff, Ms. Migra, filed a Section 1983 action contending the violation of her fundamental rights as protected by the First Amendment. The Supreme Court had little difficulty determining that Ms. Migra’s federal cause of action was precluded by her earlier suit in state court. In short, the Court held that federal courts must give full faith and credit to state court judgments including the preclusive effect of those judgments. Id.

Thus, in the instant case, this Court must afford the prior state court judgment the same preclusive effect that an Ohio Court would afford it. Barnes, 848 F.2d at 730. Ohio has adopted the modern version of the doctrine of res judicata, stating “that a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Township, 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). The Grava Court further explained *1298 that for two suits to be based upon the same transaction, there must be a “common nucleus of operative facts.” Id. If the suits share a common nucleus of operative facts, then a plaintiff cannot bring the second action “even though [he] is prepared ... (1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action.” Id. at 383, 653 N.E.2d 226.

Applying that law to the matter now before the Court, there is evidence that both this and the Plaintiffs’ original state action derive from at least some of the same operative facts. As the Magistrate noted, fifteen paragraphs of the complaint in the instant case were taken almost verbatim from the complaint in the previous state action. Those paragraphs explain, among other things, the mission of the Plaintiff Foundation, the zoning of the property in question, and the procedure followed by the Plaintiffs and the obstacles encountered by them in their attempt to realize their goal of building the low-income housing project. {See Complaint ¶¶ 12, 14-20, 23-27.) Still, as Plaintiffs suggest, notable differences can be found in paragraphs 13, 24, 28, and 29. Normally, it would be for this Court to determine whether the factual differences as alleged in those paragraphs are of such disparate substance that the federal causes of action arise from a different nucleus of operative facts.

The Court finds, however, that Defendants’ claim of res judicata turns instead on a distinctly different line of analysis. In Jamestown Village Condo. Owners Association v. Market Media Research, Inc., 96 Ohio App.3d 678, 685, 687, 645 N.E.2d 1265 (1994), the Cuyahoga County Court of Appeals acknowledged and adopted the declaratory judgment exception to the general rule of claim preclusion. In the Jamestown Court’s words, “a declaratory judgment [brought pursuant to O.R.C. § 2721] is not res judicata on an issue or claim not determined thereby even though it was known and existing at the time of the original action.” Id. at 685, 645 N.E.2d 1265. See also, Ketchel v. Bainbridge Township, 79 Ohio App.3d 174, 177, 607 N.E.2d 22 (Geauga Cy. 1992) (“a declaratory action determines only what it actually decides and does not have a claim preclusive effect on other contentions that might have been advanced”) (quoting Restatement of Law 2d, Judgments Section 33 (1982)). The rationale for this exception is grounded in the reasons for allowing actions for declaratory judgment, themselves. As explained in the Restatement (Second) of Judgments,

Historically, an action at law generally could not be maintained unless the defendant had already violated a duty owed to the plaintiff, and the purpose of the action was to redress the wrong already committed. On the other hand, in some circumstances a suit in equity might be maintained to prevent the commission of a threatened wrong and, even though no wrong had been committed or threatened, to secure a determination — which might well be called a declaration — of the rights of the parties____ (Section 33, Comment a.)

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When a plaintiff seeks solely declaratory relief, the weight of authority does not view him as seeking to enforce a claim against the defendant. Instead, he is seen as merely requesting a judicial declaration as to the existence and nature of a relation between himself and the defendant. The effect of such a declaration, under this approach, is not to merge a claim in the judgment or to bar it. Accordingly, regardless of outcome, the plaintiff or defendant may pursue further declaratory or coercive relief in a subsequent action.... A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief, if it appears that a declaration might terminate the potential controversy. (Section 33, Comment e.)

In other words, an action for declaratory judgment is intended to be a mechanism by which the parties can potentially avoid full-fledged litigation on a number of claims, by initially focusing on a single case-dispositive issue. It would defeat this purpose if a court were to bar subsequent actions based on different legal theories due to the res judicata effect of an initial declaratory action.

*1299 Nonetheless, as the Court has noted above, in 1995 the Ohio Supreme Court adopted the “modern” view of the doctrine of res judicata. Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). One might pose the question, therefore, if an exception to the 1994 version of res judicata would survive the implementation of the modem 1995 rule. The Court holds that it does.

First of all, the Court notes that there was very little which was new in the Grava Court’s holding. 15 Granted, before the opinion in Grava, Ohio’s seminal case on res judicata, Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943) (syllabus ¶ 2), stated the now-outdated approach which allowed subsequent suits for different cause of actions, but that old approach has not been followed by the Ohio Supreme Court in recent years. As a matter of fact, the Ohio Supreme Court shifted back to the “modern” view at least by 1986 when it issued Rogers v. City of Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986) (“an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.”). Indeed, the Grava opinion explains as much and cites to both the Rogers opinion and its opinion in National Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180 (1990), as examples. The most reasonable explanation for the holding in its syllabus in Grava is that the Ohio Supreme Court realized that this modern understanding of the law had not yet been reduced to a syllabus so as to conform with that unique custom of Ohio law. A review of Grava and its predecessors reveals that the “modem” approach to res judicata has been taken since the mid-1980s. It follows that the declaratory judgment exception to res judicata applied by the Jamestown Court in 1994, was recognized and adopted within the context of the “modern rule.”

Another reason for this Court to conclude that Ohio recognizes the declaratory judgment exception is that the “modern rule” which was expressly adopted by the Ohio Supreme Court in Grava was taken from the same Restatement upon which the Jamestown Court relied in finding the declaratory judgment exception to res judicata. See Grava, syllabus (adopting 1 Restatement of the Law 2d, Judgments (1982), Section 24-25); Jamestown, 96 Ohio App.3d at 685, 645 N.E.2d 1265. Furthermore, the Court notes that the Ohio Supreme Court declined to review the holding in Jamestown just seven months before issuing its opinion in Grava. While this Court does not view the denial of review as an express approval of the Jamestown holding, it is educational that the same court which expressly adopted the modern view of res judicata thought that an application of an exception to that doctrine was unworthy of review.

Although this Court disagrees with the Defendants’ conclusions, it acknowledges Defendants’ argument that there is Ohio law which supports their view that there is no declaratory judgment exception to res judicata in Ohio. Specifically, Defendants contend that the Ohio Supreme Court decided this issue in National Amusements v. Springdale, 53 Ohio St.3d 60, 558 N.E.2d 1178 (1990). In that ease, the Ohio Supreme Court considered an appeal from a theater owner who brought an action challenging the constitutionality of a tax on cinema admissions. Because the theater owner had brought a nearly identical cause of action five years earlier (albeit prior to a United States Supreme Court opinion which may have changed the outcome of the case), the defendant argued that the second suit was barred by res judicata.

The Ohio Supreme Court began its analysis of the case by recognizing that both causes of action requested an identical declaratory judgment and that the only difference in the second cause of action was an additional clause demanding that the city remit the taxes paid since the first law suit. Id. at 61 n. 1, 62, 558 N.E.2d 1178 (citing n. 1). Then the Court noted the law of res judicata as explained in Rogers which empha *1300 sizes that a party has a duty to bring all claims which “were or might have been litigated in a first lawsuit.” Id. at 62, 558 N.E.2d 1178. Because the wording of the causes of action in both lawsuits was identical and the additional claim for relief could have been brought in the initial suit, the Court found plaintiff’s claim barred by res judicata. Id. 16

This analysis by the National Amusements Court does not impact this Court’s consideration of the existence of a declaratory judgment exception for two complimentary reasons. First, although the initial cause of action in National Amusements was one for declaratory judgment, the declaratory judgment exception was not raised by the parties in the second cause of action; it was not before the Court and the Court did not consider it. Second, even if that exception had been raised, it would not have been applied by the Court in that context. The declaratory judgment exception to res judicata does not allow a plaintiff to bring successive identical declaratory judgment actions as the National Amusements plaintiff was attempting. Rather, the declaratory judgment exception is a product of the declaratory action itself, the purpose of which is to allow parties to receive a relatively expedient opinion on one issue which could control the outcome of the case. If the declaratory device functions perfectly, the parties need not reach other, potentially meritorious causes of action arising out of the same circumstances as the first. The usefulness of the declaratory judgment itself would be eliminated if we were to allow the doctrine of res judicata to bar subsequent suits brought based on different legal theories. However, no purpose would be served by allowing a plaintiff to bring a second suit on the same legal theory. It follows that in National Amusements, the Court was undoubtedly correct to ignore the declaratory judgment exception because the second cause of action which that Court was considering was brought on a legal theory which was identical to, rather than different from, the first suit filed by that plaintiff. See also Shaper v. Tracy, 76 Ohio St.3d 241, 667 N.E.2d 368 (1996) (considering suits based on identical legal issues). The National Amusements decision, therefore, sheds little light on the viability of the declaratory judgment exception to the doctrine of res judicata in Ohio.

Ultimately, based on the Cuyahoga Court of Appeals decision in Jamestown and the Ohio Supreme Court’s willingness to rely on the Restatement (Second) of Judgments, the Court concludes that Ohio does recognize the declaratory judgment exception to the rule of res judicata. In the instant case, a review of the original state court complaint, (docket # 33, ex. C), reveals that the only issue of law raised was the Defendants’ ability under state law to allow a referendum on a particular administrative ordinance passed by the Cuyahoga Falls Council. None of the federal law causes of action now advanced in the instant suit were discussed. Therefore, as long as the initial state court action was one for declaratory judgment, it should fit within the res judicata exception.

Having thus determined that in Ohio, “a declaratory action determines only what it actually decides and does not have a claim preclusive effect on other contentions that might have been advanced,” Ketchel v. Bainbridge Township, 79 Ohio App.3d 174, 177, 607 N.E.2d 22 (Geauga Cy. 1992) (quoting Restatement of Law 2d, Judgments (1982)), and having determined that the Plaintiffs’ original complaint dealt solely with a question of law not raised in the Plaintiffs’ federal complaint, the Court must next determine whether Plaintiffs’ original cause of action was declaratory in nature and thus within the exception to the rule of res judicata. Defendants argue that the original state complaint requested coercive relief which changed the nature of the cause of action to something other than a simple declaratory action.

Plaintiffs’ original state cause of action was entitled a “Complaint for Temporary Restraining Order[,] Declaratory Judgment, and] Injunctive Relief.” (Docket # 33, ex. C.) The Plaintiffs spelled out the facts of the *1301 case, and then requested an opinion on whether a particular vote of the Cuyahoga Falls Council could be the subject of a referendum vote of the people. (Docket # 38