            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 17a0338n.06

                                       No. 16-3867

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                         Jun 16, 2017
CENTER FOR POWELL CROSSING,                      )                   DEBORAH S. HUNT, Clerk
LLC,                                             )
                                                 )
      Plaintiff-Appellee,                        )
                                                 )
CITY OF POWELL, OHIO,                            )
                                                 )     On Appeal from the United States
      Defendant-Appellee,                        )     District Court for the Southern
                                                 )     District of Ohio
v.                                               )
                                                 )
BRIAN EBERSOLE,                                  )
                                                 )
      Proposed Intervenor-Appellant.             )
                                                 )
_________________________________/

      Before: GUY, CLAY, and WHITE, Circuit Judges.

      RALPH B. GUY, JR., Circuit Judge.              Proposed intervenor-appellant Brian

Ebersole appeals the district court’s order denying his motion to intervene. Because

Ebersole lacks standing, we affirm.

                                            I.

      After the Powell City Council authorized a downtown high-density housing

development, Ebersole sponsored a petition drive to submit a ballot proposal to the voters
Case No. 16-3867                                                                           2
Center for Powell Crossing, LLC v. Ebersole
of the City of Powell. The proposal included a charter amendment prohibiting high-

density housing in downtown Powell, set forth a new comprehensive land-use plan, and

created an advisory committee to make land-use recommendations to the city council.

       The City initially refused to place the proposal on the ballot, asserting that it

violated the Ohio Constitution’s prohibition on municipal referenda acting upon

administrative decisions. See OHIO CONST. art. II, § 1f; see also State ex rel. Oberlin

Citizens for Responsible Dev. v. Talarico, 836 N.E.2d 529, 534-35 (Ohio 2005)

(enactment of an ordinance “comparable to approving a site plan for development of

land” “constitutes an administrative action, which is not properly the subject of either

referendum or initiative seeking its repeal”). After initially denying relief, the Ohio

Supreme Court granted rehearing, granted Ebersole’s mandamus petition and ordered the

City to put the initiative on the ballot. State ex rel. Ebersole v. City of Powell, 21 N.E.3d

274 (Ohio, 2014).     The Ohio Supreme Court wrote that “[t]he proper time for an

aggrieved party to challenge the constitutionality of the charter amendment is after the

voters approve the measure, assuming they do so” – which they did in November 2014.

Id. at 277.

       The Center for Powell Crossing – the proposed developer of the downtown parcel

– challenged the amendment, arguing inter alia that the referendum used to ratify it

repealed an administrative action and thus violated procedural due process. Ebersole

filed an extensive amicus brief raising the same jurisdictional argument he renews on

appeal. The district court agreed with Powell Crossing and granted permanent injunctive

relief against enforcement of the amendment. The City declined to appeal, although it
Case No. 16-3867                                                                        3
Center for Powell Crossing, LLC v. Ebersole
stated its intent to challenge any further claims and mitigate continuing exposure to

damages.

       Following the district court’s judgment, Ebersole moved to intervene solely for

purposes of appealing the permanent injunction. The district court denied the motion in a

written order, ruling that Ebersole lacked standing to intervene. He appeals.

                                              II.

       We review de novo the district court’s ruling on Ebersole’s motion to intervene as

of right; however, we review timeliness for an abuse of discretion.         Coal. to Def.

Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007). We review its ruling

on Ebersole’s motion for permissive intervention for an abuse of discretion. United

States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005).

                                              III.

       a. Standing

       An intervenor normally has the right to appeal an adverse trial court judgment just

like any other party. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 428 (6th Cir.

2008). Where an original party declines to appeal, however, an intervenor-appellant must

have Article III standing. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013); see

also Diamond v. Charles, 476 U.S. 54, 68 (1986) (“an intervenor's right to continue a suit

in the absence of the party on whose side intervention was permitted is contingent upon a

showing by the intervenor that he fulfills the requirements of Art. III”); Cherry Hill

Vineyards, 553 F.3d at 428 (“an intervenor seeking to appeal, like any other party, must
Case No. 16-3867                                                                           4
Center for Powell Crossing, LLC v. Ebersole
fulfill the requirements of Article III of the Constitution before it can continue to pursue

an action in the absence of the party on whose side intervention was permitted”).

       Unlike in Perry, Diamond, and Cherry Hill Vineyards, Ebersole never intervened

before seeking an appeal. He moved to intervene only after an adverse final judgment,

and the district court was aware that the City of Powell – on whose side he sought to

intervene – would not pursue an appeal. This puts Ebersole in a position analogous to the

appellants in Perry, Diamond, and Cherry Hill Vineyards:            a would-be intervenor

attempting to take up an appeal where the original party declined to do so. In these

circumstances, Article III standing is essential to preserve the “personal stake” at the core

of our adversarial system. Perry, 133 S. Ct. at 2663 (quotation omitted). Ebersole thus

must establish that he has suffered a concrete and particularized injury that is fairly

traceable to the challenged conduct and likely to be redressed by a favorable judicial

decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). He asserts four such

injuries, each inadequate to provide standing.

              i. Comprehensive Plan Commissioner

       Ebersole first claims that he can show an injury from his appointment to the

Comprehensive Plan Commission created by the initiative – a position which no longer

exists as a result of the district court’s ruling that the amendment is unconstitutional.

However, the president of Ebersole’s homeowners’ association purported to appoint him

to the committee 29 days after the district court’s judgment, 12 days after Ebersole filed

his motion to intervene, and 2 days after the City responded to his motion by arguing that

he lacked standing. The district court determined that this amounts to manufactured
Case No. 16-3867                                                                            5
Center for Powell Crossing, LLC v. Ebersole
standing, and we agree. The Supreme Court has declined to find standing in contrived

circumstances.    See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013).

Further, the “standing of a prospective intervenor . . . is properly measured at the time

intervention is sought in the district court.” Dillard v. Chilton Cty. Comm’n, 495 F.3d

1324, 1339 (11th Cir. 2007).

              ii. Initiative Sponsor

       Next, Ebersole claims standing by virtue of his status as a sponsor of the ballot

initiative. Although initiative sponsors have an interest in having the initiatives they

support appear on the ballot, Providence Baptist Church v. Hillandale Comm., Ltd.,

425 F.3d 309, 316-17 (6th Cir. 2005), their interest stops there. Initiative sponsors lack

standing to defend the merits of initiatives against constitutional challenges. See

Arizonans, 520 U.S. at 65 (“[W]e are aware of no . . . law appointing initiative sponsors

as agents of the people . . . to defend, in lieu of public officials, the constitutionality of

initiatives made law of the State. Nor has this Court ever identified initiative proponents

as Article-III-qualified defenders of the measures they advocated.”). Ebersole thus lacks

standing as an initiative sponsor.

               iii. Landowner

       Ebersole also argues that he has standing by virtue of the proximity of his property

to the planned development. He contends that the development will cause increased

crime, blight, air pollution, parking, traffic, noise, and a resulting loss of quiet enjoyment

of his property. Ebersole’s residence is nearly a mile by car from the development site.

Moreover, his property is on a residential cul-de-sac unlikely to encounter any substantial
Case No. 16-3867                                                                           6
Center for Powell Crossing, LLC v. Ebersole
increase in foot or car traffic as a result of the development, which is on a main road in

the downtown business district. To the extent Ebersole may encounter additional traffic

in the downtown Powell area, his purported injury is undifferentiated from that of the

community in general.

       This is a far cry from the type of land use or residential proximity at issue in, for

example, Lujan, 504 U.S. at 572 n.7 (property “adjacent to the site for proposed

construction of a federally licensed dam”). Furthermore, Ebersole presents no facts or

evidence that high-density housing a half mile from his home will lead to the sorts of

injuries he asserts. This leaves Ebersole only the sort of unparticularized interest in the

amendment shared by every Powell citizen.

              iv. Citizen Interest

       Ebersole lastly cites his interest in the enforcement of the amendment as a Powell

resident, elector, and taxpayer as a basis for standing. However, the Supreme Court has

“never before upheld the standing of a private party to defend the constitutionality of a

state statute when state officials have chosen not to.” Perry, 133 S. Ct. at 2668. Absent a

direct, personal stake in the outcome of a case, a citizen does not have standing based on

“his and every citizen’s interest in proper application of the Constitution and laws.” Id. at

2662 (citation omitted).
Case No. 16-3867                                                                         7
Center for Powell Crossing, LLC v. Ebersole
       b. Subject Matter Jurisdiction

       Apart from his claim to standing to intervene, Ebersole argues the district court

lacked subject matter jurisdiction over Powell Crossing’s challenge to the amendment.

We are satisfied that it did.

       Ebersole characterizes plaintiff’s action as a “disguised and unripe takings claim.”

Per Williamson Cty. Reg. Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S.

172, 194 (1985), a developer’s takings claims for failure to provide just compensation are

not ripe for federal court review unless and until unsuccessfully seeking just

compensation through state procedures. In Braun v. Ann Arbor Charter Twp., 519 F.3d

564, 572 (6th Cir. 2008), we held that a due process claim alongside and couched within

a takings claim is subject to these exhaustion requirements.

       Plaintiff, however, asserts no takings claim.     Although plaintiff mentions the

purchase price of the land for the proposed development in its complaint, it sought no

compensation whatsoever in its prayer for relief. See Coniston Corp. v. Vill. of Hoffman

Estates, 844 F.2d 461, 463-64 (7th Cir. 1988) (no takings claim where plaintiffs “have

not explored the possibility of obtaining compensation for an alleged regulatory taking”

but instead “want their site plan approved”). It is thus immaterial that plaintiff did not

seek just compensation through Ohio state-law procedures.         Accordingly, plaintiff’s

claim is not an “unripe takings claim” as Ebersole urges, and the Williamson exhaustion

requirement is inapplicable. The district court therefore had jurisdiction over this case

under 28 U.S.C. § 1331.
Case No. 16-3867                                                                        8
Center for Powell Crossing, LLC v. Ebersole
                                              * * *

       Ebersole has not suffered a cognizable injury, and therefore does not have Article

III standing. This precludes him from independently appealing when the City of Powell

has declined to do so. Diamond, 476 U.S. at 64. Because he moved to intervene solely

to appeal the district court’s ruling on the merits, the district court rightly denied his

motion for lack of standing.

       AFFIRMED.
