CINCINNATI -- Opponents of the city of Cincinnati’s controversial parking lease suffered two legal defeats Wednesday, but insist the fight is far from over.
In a 4-3 decision, the Ohio Supreme Court declined to hear an appeal of an earlier decision that ruled city officials had the authority to block a voter referendum on the lease.
Later, in a related case, a Hamilton County Common Pleas judge denied a request for a temporary restraining order (TRO) to prevent the lease from taking effect unless City Council votes on the deal again.
Two lease critics, Tom Brinkman Jr. and Mark W. Miller, filed a complaint Tuesday seeking a temporary restraining order and permanent injunction against the lease.
Brinkman and Miller argue that the lease has undergone “significant and material changes” since the version that City Council approved in March.
Although Hamilton County Common Pleas Judge Ralph “Ted” Winkler said City Council “should've probably voted on this change," he said it didn’t meet the legal standard for granting a restraining order.
"For a court to interfere with city business, there has to be substantial grounds to do that," Winkler said.
The plaintiffs will get another chance to stop the lease Sept. 26, when Winkler will hold a hearing on the request for a preliminary injunction.
Hartman plans on subpoenaing City Manager Milton Dohoney Jr. to testify at the Sept. 26 hearing, he said. Hartman wants Dohoney to detail how lease changes were made.
“It’s just the beginning,” said Curt Hartman, attorney for lease opponents. “I am disappointed by today’s decision, yes. Shocked, no, because of the high standard we have to achieve to get a TRO.”
Assistant City Solicitor Terry Nestor argued at the hearing that changes made to the parking lease during negotiations with sub-contractors were no different than changes made to any development deal as it evolves.
“This is how the city does business with all developers," Nestor told the judge. If that flexibility is taken away, it could affect future development deals, he added.
In their complaint, Brinkman and Miller noted a lease provision was changed involving the city’s right to terminate the deal.
Under the version approved by council, the lease could be terminated if a bond agreement hadn’t been finalized by June 30.
The latest version of the lease, however, doesn’t include a specific date when the city could cancel the deal. Instead, it is a floating date subject to further indefinite extensions by the Port Authority.
Nestor, though, blamed the change on delays caused by the first legal battle over the lease.
“Courts should not allow a third party to delay a contract and then complain when the parties change the contract because of the delay," Nestor said.
In making his ruling, Winkler said "on this limited issue," Dohoney carried out City Council’s intent when negotiating the lease. But the judge suggested council should be more specific in the future.
Council approved the lease of city-owned parking meters, lots and garages to the Port Authority last spring.
During the past 75 days, however, the Port Authority has reviewed the lease and made some changes in negotiations with two subcontractors, Xerox Corp. and Denison Parking. Xerox would manage the meters, while Denison Parking would manage the garages and lots.
Brinkman and Miller are part of the Coalition Opposed to Additional Spending and Taxes (COAST), a group opposed to the lease.
Other groups opposed to the deal include the NAACP’s local chapter and some neighborhood councils.
Under the deal, the city’s parking meters would be leased to the Port Authority for 30 years, while its garages and lots would be leased for 50 years.
In return, the city would receive a $92 million upfront payment, along with annual payments of about $3 million.
The Port Authority would issue bond debt to pay for improvements and technological upgrades to the parking facilities.
City officials plan to use the money to quicken the pace of some development projects, as well as possibly help close an unfunded liability in the city’s pension fund.
Some small business owners and neighborhood groups worry that rate increases and aggressive enforcement would harm businesses.
The Port Authority would get annual management fees of about $300,000. Also, Port Authority CEO Laura Brunner has asked City Council for $27 million of the $92 million upfront money.
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