IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO CITY OF CINCINNATI CASE NO801 PLUM STREET CINCINNATI, OHIO 45202, JUDGE PLAINTIFF, VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY AND NEW FOUNDATIONS PERMANENT RELIEF TRANSITIONAL LIVING . RE 13.13 826 HARRIS AVENUE CINCINNATI, OHIO 45205, - Also serve statutory agent Tracy Hollin 3769 St. Lawrence Avenue Cincinnati, Ohio 45205 REGULAR MAIL WAWER and ROSS SHIVELY 39;; 609 LEGEND HILLS CINCINNATI, OHIO 45255, REGULAR MAIL WAIVER EB ggfy. - us) -n-<51 A -- I '1 13 --473?-1 CONSUELO SHIVELY we 609 LEGEND HILLS ca 9; CINCINNATI, OHIO 45255, EGUEAR Mm? And JACOB LUSTIG i 6662 E. FARM ACRES DRIVE REGULAR MAIL WAIVER CINCINNATI, OHIO 45237 DEFENDANTS. - . I 1N1 {00135113-1} Now comes Plaintiff City of Cincinnati (?City?) and for its Complaint against Defendant New Foundations Transitional Living, Defendant Ross Shively, Defendant Consuelo Shively, and Defendant Jacob Lustig (collectively ?Defendants?) respectfully states as follows: PARTIES. JURISDICTION. AND VENUE 1. Plaintiff City is an Ohio municipal corporation chartered under Article Section 7 of the Ohio Constitution. 2. Defendant New Foundations Transitional Living is an Ohio non-pro?t with its principal place of business in Hamilton County 3. Defendant Ross Shively is an individual doing business in Hamilton County, Ohio. Mr. Shively owns certain real estate that is the subject of this Complaint and is the Chief Executive Officer for New Foundations Transitional Living. 4. Defendant Consuelo Shively is an individual doing business in Hamilton County, Ohio. Ms. Shively owns certain real estate that is the subject of this Complaint. Upon information and belief, Ross Shively and Consuelo Shively are husband and wife. 5. Defendant Jacob Lustig is an individual doing business in Hamilton County, Ohio. Mr. Lustig owns certain real estate that is the subject of this Complaint. 6. The real properties that are the subject of this Complaint are located in the City of Cincinnati at the following addresses: 933 Rutledge Avenue (Parcel ID No. 1799-0078-0320); 1728 Iliff Avenue (Parcel ID No. 181~o002~o234); 1033 Gilsey Avenue (Parcel ID No. 179-0075- 0438); 826 Harris Avenue (Parcel ID No. 179?oo76?oo36); 1003 Seton Avenue (Parcel ID No. 174-0006-oo25); 738 McPherson Avenue (Parcel ID No. 176?oo24?oo14); 3421 Eighth Street (Parcel ID No. 176?0o21?o0o7); and 3769 St. Lawrence Avenue (Parcel ID No. 176?oA23?0030). Existing single?faInily and two-family structures are located on the properties. 7. The City has enacted a zoning ordinance pursuant to Section 3, Article of the Ohio Constitution. The City?s zoning ordinance is codi?ed as Title XIV of the Cincinnati Municipal Code (?Zoning Code?). {00135118-1} A 2 8. The City brings this action pursuant to R.C. 713.13 on behalf of itself and its residents to obtain injunctive relief to terminate existing Violations of its Zoning Code and to prevent imminent violations of its Zoning Code. 9. Jurisdiction and venue are proper in this Court. INTRODUCTION 10. The Defendants are in violation of the Zoning Code and may commit additional violations of the Zoning Code. They are operating, or permitting the operation of, transitional housing facilities in zoning districts where transitional housing facilities are not permitted. 11. The Zoning Code is enacted to preserve the public, health, safety, and welfare, and Defendants? actions are a threat to the public health, safety and welfare. NEW FOUNDATIONS TRANSITIONAL LIVING 12. NFTL holds itself out as the largest transitional housing organization in the Cincinnati and Northern Kentucky region. Its organization is spread across eight transitional housing facilities and halfway houses. Seven of the facilities and home office are located in the City?s Price Hill neighborhood. 13. NFTL accepts resident placements from courts, probation officers, treatment centers, and other institutions. 14. Prospective NFT residents apply to enter its program, pay an upfront application fee, and submit to an interview process. 15. If admitted into program, residents are required to meet program requirements. The requirements include participation in a 12-step recovery program, obtaining and working with a sponsor, performing chores, obtaining employment or attending school, attending weekly house meetings, observing a curfew, obtaining a pass to stay overnight at other locations, receiving visitors at limited hours, performing assignments associated with their recovery program, and completing all requirements of their discharging institution. {00l35118-1} 3 16. NFTL also arranges for, or provides its residents with, services that are designed to assist them in recuperating from the effects of drug and alcohol abuse and in readjusting to society while under criminal justice supervision. The services include counseling, therapy, and training. 17. Each of transitional housing facilities and halfway houses has managers who work closely with residents to monitor their progress within program. The managers also work closely with probation of?cers, courts, treatment centers, and other institutions that have placed residents with NFTL to ensure that the residents comply with court orders, exit strategies, and other conditions of their placement. PRICE HILL TRANSITIONAL HOUSING FACILITIES AND HALFWAY HOUSES 18. transitional housing facilities and halfway houses in Price Hill are operating in violation of the Zoning Code. 19. The Zoning Code divides the City into 24 types of zoning districts. These districts regulate the use of land and structures within the districts. 20. Single?Family Zoning Districts are the most restrictive zoning districts established by the Zoning Code. The restrictive nature of these districts re?ects one of the Zoning Code?s paramount purposes: to preserve the character and quality of residential neighborhoods. 21. transitional housing facilities and halfway houses in Price Hill are all located in Single?Family Zoning Districts. 22. The Zoning Code prohibits the operation of transitional housing facilities in all Single-Family Zoning Districts. 23. Through their actions and omissions, NFTL, Ross Shively, Conseulo Shively, and Jacob Lustig have permitted transitional housing facilities to operate in violation of the Zoning Code. {00l35ll8?l} 4 24. Upon information and belief, transitional housing facility and/or halfway house located at 1728 Iliff Avenue operates in a two-family structure that sits in an SF-2 Single- Family Zoning District. It is owned by Ross Shively. 25. Upon information and belief, transitional housing facility and/or halfway house located at 1033 Gilsey Avenue operates in a two-family structure that sits in an SF-4 Single?Family Zoning District. It is owned by Ross Shively and Consuelo Shively. 26. Upon information and belief, transitional housing facility and/or halfway house located at 826 Harris Avenue operates in a single-family structure that sits in an Single-Family Zoning District. It is owned by Ross Shively. 27. Upon information and belief, transitional housing facility and/or halfway house located at 1003 Seton Avenue operates in a single?family structure that sits in an SF-4 Single?Family Zoning District. It is owned by Jacob Lustig. 28. Upon information and belief, transitional housing facility and] or halfway house located at 738 McPherson Avenue operates in a two-family structure that sits in an SF -2 Single?Family Zoning District. It is owned by Ross Shively. 29. Upon information and belief, transitional housing facility and/or halfway house located at 3421 W. Eighth Street operates in a single?family structure that sits in an SF-4 Single?Family Zoning District. It is owned by Ross and Consuelo Shively. 30. Upon information and belief, transitional housing facility and/or halfway house located 3769 St. Lawrence Avenue operates in a two-family structure that sits in an SF-4 Single?Family Zoning District. It is owned by Ross Shively and Consuelo Shively. 31. To the extent transitional housing facilities and halfway houses are not transitional housing facilities, transitional housing facilities and halfway houses are congregate housing facilities. 32. The Zoning Code prohibits the operation of congregate housing facilities in all Single?Family Zoning Districts. {00135113-1} 5 33. To the extent transitional housing facilities and halfway houses are not transitional housing facilities, NFTL, Ross Shively, Conseulo Shively, and Jacob Lustig, through their actions and omissions, have permitted congregate housing facilities to operate in violation of the City?s Zoning Code. 34. On April 11, 2014, the City ordered Defendants Ross Shively, Conseulo Shively, and Jacob Lustig to discontinue the illegal use of the above-described properties for transitional housing facilities and congregate housing facilities. 35. Defendants? illegal use and operation of the above?described properties continued despite the City?s orders. 36. On April 18, 2014, the City?s demanded that NFTL and Ross Shively discontinue the illegal use of the above?described properties for transitional housing facilities and congregate housing facilities. The City?s demand speci?ed that it would seek injunctive relief under R.C. 713.13 to enjoin the illegal behavior unless NFTL and Ross Shively indicated on or before April 24, 2014 their intent to cease the illegal operation of the above?described properties. 37. On April 24, 2014, NFT and Ross Shively informed the City that they had not yet determined whether they would comply with the City?s orders and demand and cease their illegal use of the above?described properties. 38. Upon information and belief, Defendants? illegal use and operation of the above- described properties continue as of the ?ling of this Complaint. 933 RUTLEDGE AVENUE 39. The two-family dwelling located at 933 Rutledge Avenue sits in an SF-6 Single- Family Zoning District in Price Hill. It was purchased by Defendant Ross Shively on or about February 25, 2014. 40. On or after February 25, 2014, Ross Shively performed repairs to the two-family dwelling without first obtaining the building permit required for the work. {00l35118-1} 6 41. The City discovered the illegal repairs and directed Ross Shively to obtain a building permit for the work. 42. Ross Shively, through his contractor agent, obtained a building permit for the work. The application for the building permit indicated that Ross Shively intends to operate the two?family dwelling as a two-family use. 43. In light of Ross Shively?s relationship with NFTL and his history of permitting NPTL to operate transitional housing facilities and halfway houses in his other single-family and two?family structures located in Price Hill, it is the City?s belief that Ross Shively purchased 933 Rutledge with the intent to permit NFTL to establish a transitional housing facility or halfway house. 44. operation of a transitional housing facility in the two?family dwelling located at 933 Rutledge Avenue would violate the Zoning Code?s prohibition against the operation of transitional housing facilities in Single?Family Zoning Districts. 45. To the extent transitional housing facilities and halfway houses constitute congregate housing facilities and not transitional housing facilities, operation of a congregate housing facility in the two-family dwelling located at 933 Rutledge Avenue would violate the Zoning Code?s prohibition against the operation of congregate housing facilities in Single-Family Zoning Districts. COUNT I: TEMPORARY RESTRAINING ORDER 213.131 46. The City incorporates the foregoing allegations as if fully restated herein. 47. R.C. 713.13 authorizes the City to institute a suit for injunction to prevent violations of its Zoning Code. 48. Defendant Ross Shively has committed violations of the Zoning Code by permitting NFT to operate transitional housing facilities and/ or congregate housing facilities {00135118-1} 7 in single-family and two?family structures located in Single?Family Zoning Districts in Price Hill. 49. Ross Shivley?s purchase and renovation of the two-family structure located at 933 Rutledge Avenue in a Single?Family Zoning District in Price Hill poses an imminent threat that he will permit to establish an illegal transitional housing facility or congregate housing facility on the property. 50. Ross Shively?s or establishment of a transitional housing facility or congregate housing facility in the two-family structure at 933 Rutledge Avenue would violate the Zoning Code?s prohibition against the establishment of transitional housing facilities and congregate housing facilities in Single-Family Zoning Districts. 51. The City is entitled to a temporary restraining order enjoining Ross Shively and NFTL from establishing a transitional housing facility or congregate housing facility in the two- family structure at 933 Rutledge Avenue. COUNT II: PRELIMINARY AND PERMANENT INJUNCTION (RC. 1213.13) 52. The City incorporates the foregoing allegations as if fully restated herein. 53. R.C. 713.13 authorizes the City to institute a suit for injunction to prevent violations of its Zoning Code. 54. Defendant NFTL operates transitional housing facilities or congregate housing facilities on the properties located at 1728 Iliff Avenue, 1033 Gilsey Avenue, 826 Harris Avenue, 1003 Seton Avenue, 738 McPherson Avenue, 3421 Eighth Street, and 3769 St. Lawrence Avenue. 55. Defendants Ross Shively, Consuelo Shively, and Jacob Lustig, through their actions and omissions, have permitted NFTL to operate transitional housing facilities or congregate housing facilities on the above?described properties. 56. All of the above?described properties are located in Single?Family Zoning Districts. {00135118?1} 8 57. operation of transitional housing facilities in Single?Farnily Zoning Districts constitutes a violation of the Zoning Code?s prohibition against the operation of transitional housing facilities in Single-Family Zoning Districts. 58. Additionally, operation of congregate housing facilities in Single-Family Zoning Districts constitutes a violation of the Zoning Code?s prohibition against the operation of congregate housing facilities in Single-Family Zoning Districts. 59. The City is entitled to a preliminary and permanent injunction enjoining Ross Shively, Consuelo Shively, and Jacob Lustig from continuing the operation of, or permitting the continued operation of, transitional housing facilities and congregate housing facilities on the properties located at 1728 Iliff Avenue, 1033 Gilsey Avenue, 826 Harris Avenue, 1003 Seton Avenue, 738 McPherson Avenue, 3421 Eighth Street, and 3769 St. Lawrence Avenue. WHEREFORE, the City requests that this Court issue the following relief: A. A temporary restraining order pursuant to R.C. 713.13 enjoining Defendants Ross Shively and NFT from establishing a transitional housing facility or congregate housing facility in the two-family structure at 933 Rutledge Avenue. B. A preliminary and permanent injunction pursuant to R.C. 713.13 enjoining Defendants NFTL, Ross Shively, Consuelo Shively, and Jacob Lustig from the continuing operation of, or permitting the continuing operation of, transitional housing facilities and congregate housing facilities on the properties located at 1728 Iliff Avenue, 1033 Gilsey Avenue, 826 Harris Avenue, 1003 Seton Avenue, 738 McPherson Avenue, 3421 Eighth Street, and 3769 St. Lawrence Avenue. C. Any other injunctive relief pursuant to R.C. 713.13 necessary to prevent or terminate the Defendants? threatened or actual violations of the Zoning Code. D. Awarding the City such other extraordinary, declaratory, and injunctive relief permitted by law or equity as necessary to assure that the City has an effective remedy; E. For an order requiring Defendants to pay the costs of this action; and {o013511s?1} 9 F. All other relief for the City as is determined just, necessary and equitable. Respectfully submitted, TERRANCE A. NESTOR INTERIM CITY SOLICITOR Marion E. Haynes. Marion E. Haynes, (0080671) Chief Counsel Mark R. Manning (0088331) Assistant City Solicitor 801 Plum Street, Room 214 Cincinnati, Ohio 45202 Phone: (513) 352-4894 Fax: (513) 352-1515 Email: Email: Trial Attorneys for Plain VERIFICATION 1, Edward Cunningham, Division Manager for Property Maintenance Code Enforcement for the City Of Cincinnati, having been duly sworn, depose and state that I have read the foregoing Veri?ed Co plaint for Injunctive and Other Equitable Relief, and that the information stated therein a factuz!1?l is true, and those factual matters which are state upon information and belief are beli to be rue. unningham Subscribed to and Sworn before me this 30th day of April, 2014 . MARION EUGENE HAYNES Ill Attorney Attaw 05? commission oes no explre I63 Sec.14m3Rc_ {00l35l18-1} 10 WRITTEN REQUEST FOR SERVICE AND WAIVER OF NOTIFICATION To the Clerk of Courts: You are instructed to make certi?ed mail service, return receipt requested, to the respondents at the addresses set forth in the caption of this complaint. If service of process by certi?ed mail is returned by the postal authorities with an endorsement of ?refused? or ?unclaimed,? the undersigned waives notice of the failure of service by the clerk and requests ordinary mail service in accordance with Civil Rule 4.6 (C) or Marion E. Haynes, Marion E. Haynes, (0080671) {00135l18-1} 11 COMMON PLEAS COURT HAMILTON COUNTY, OHIO City of Cincinnati CASE NO. VS WRITTEN REQUEST FOR SERVICE TYPE OF PAPERS TO BE SERVED ARE New Foundation Transitional Living, et al. Compiainti pl-eiiminary mjunc?on (at PLEASE CHECK IF THIS IS A DOMESTIC CASE REQUESTS: EXPRESS MAIL SERVICE CERTIFIED MAIL SERVICE REGULAR MAIL SERVICE PERSONAL SERVICE RESIDENCE SERVICE PROCESS SERVICE FOREIGN SHERIFF ON New Foundations Transitional Living, 826 Harris Avenue, Cincinnati, Ohio 45205 Tracy Hollin, 3769 St. Lawrence Avenue, Cincinnati, Ohio 45205 Ross Shively, 609 Legend Hills, Cincinnati, Ohio 45255 Consuelo Shively, 609 Legend Hills, Cincinnati, Ohio 45255 Jacob Lustig, 6662 E. Farm Acres Drive, Cincinnati, Ohio 4523? Marion E. Haynes, (513) 352-4894 ATTORNEY PHONE NUMBER 801 Plum Street. Room 214, Cincinnati, Ohio 45202 ADDRESS ATTORNEY NUMBER COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO REQUEST AND INSTRUCTIONS FOR ORDINARY MAIL SERVICE CIIY of Cincinnati INSTRUCTIONS TO THE CLERK -vs- CASENUMBERA 1_ 4 2 5 7 3 New Foundations Transitiona Defendant IF SERVICE OF PROCESS BY CERTIFIED MAIL IS RETURNED BY THE POSTAL AUTHORITIES WITH AN ENDORSEMENT OF OR AND IF THE CERTIFICATE OF MAILING CAN BE DEEMED COMPLETE NOT LESS THAN FIVE (5) DAYS BEFORE ANY SCHEDULED HEARING, THE UNDERSICNED WAIVES NOTICE OF THE FAILURE OF SERVICE BY THE CLERK AND REQUESTS ORDINARY MAIL SERVICE IN ACCORDANCE CIVIL RULE 4.6 (C) OR (D) AND CIVIL RULE 4.6 (E). Marion E. Haynes, Ill ATTORNEY OF RECORD (TYPE OR PRINT) 4/30/14 DATE ATTOR