Would Western & Southern sue Joseph and Mary today?

By JASON DEAN

Soon it will be Christmas, the religious holiday by which Christians all across the globe celebrate the birth of Jesus. The tale of the Nativity depicts Jesus’s mother, the Virgin Mary, traveling with her betrothed Joseph to the town of Bethlehem. It’s a well known story, whether Christian or not, and most know that this young couple far from home find themselves homeless for the night and have to take shelter in a manger.

This is probably the most famous story of a homeless pregnant young woman that there has ever been. Since 1939 insurance and investments company Western & Southern has sponsored the Eden Park Christmas Nativity scene that depicts this story, yet 72 years later the same company is actually suing a Christian organization, Cincinnati Bethel Union (CUB), for trying to make improvements to the Anna Louise Inn that has provided safe and affordable housing to Cincinnati women since 1909.

Thursday, December 15th, 2011 saw Western & Southern and CUB return to the courtroom of Judge Nadel to present evidence and witnesses in a suit that CUB defense lawyers claim should have been dismissed back in August when they first appeared before Nadel.

The case has not received the media attention that it deserves and many are unaware that Western & Southern are suing CUB in order to prevent them from renovating the 102-year-old women’s affordable housing building that was built for CUB by the prodigious Taft family. For over a century the interior design of the building has offered dormitory style housing with individual rooms, but shared kitchen and bathroom facilities. CUB has successfully raised funds to renovate the dormitories into individual apartments and provide the women who live there with their own bathroom and kitchen. CUB was poised to begin the project when Western & Southern filed suit against CUB on the grounds that the zoning permits were not legitimately applied for, and therefore should be denied.

It is worth noting that the Anna Louise Inn is NOT a homeless shelter, as it commonly mistaken for, as the women living there pay rent and have not come straight from the street. It is also worth noting that despite Western & Southern claiming in court back in August that they are not out to take the Anna Louise Inn building, they have made financial offers to CUB in the past to buy the property. CUB declined the offer and now is in court having to defend the zoning permits that were granted to them twice by Hamilton County Zoning Board.

But despite the Zoning Board’s decision in September 19 to uphold its original permit award to CUB after hearing Western & Southern’s complaint, the insurance company still has not accepted that the imminent renovations to the Anna Louise Inn are legal. Western & Southern is pushing forward in their fight to see CUB lose its zoning permits.

In August, when the suit began in Judge Nadel’s court, only a few representatives of Western & Southern were there to present the case; the rest of the room was filled to standing capacity only with supporters of Anna Louise.  December 15 saw almost as many supporters of the Inn in the courtroom, however, this time Western & Southern had brought along almost a dozen men in suits who sat in the rows behind the plaintiff’s table. Presumably this was to help balance the appearance of the crowd, but the men in suits did nothing except look bored, text on their phones, and leave at lunchtime.

The atmosphere of the courtroom was far tenser than back in August. The first point of contention was brought up by Timothy Burke, CUB’s defense lawyer, when he observed that the plaintiffs had only filed their legal briefs a day before the court date. Francis Barrett, plaintiff lawyer and brother of Western & Southern Board Chairman John Barrett, responded by stating that he “had other things going on.” Judge Nadel also admitted that he had not actually read the legal briefs, as he had also “been busy.”

In a clever opening statement from the defense, Burke quoted another lawyer who eloquently argued that in cases where there is a conflict of interpretation on zoning permits that the court should and does fall in favor of the actual property owner, which in this case is CUB. Upon finishing the succinct and poignant quotation Burke then went on to reveal that these were actually the words of Francis Barrett. It was a sharp barb that went almost ignored by the plaintiffs and the judge, but the rest of the courtroom reacted with an excited energy; an energy that was soon to become boredom when the plaintiffs brought out their witness.

Central to Western & Southern’s case is that CUB had misled the Zoning Board in the use of the permits and that “non conforming usage” undermined the legitimacy of the application. The plaintiff’s expert witness was UC college professor and independent urban design consultant Menelaos Triantafillou. Western & Southern had hired him to assess the usage of the Anna Louise Inn and give his expert opinion in court. Triantafillou explained that his research involved jogging by the building, admiring its architecture, and visiting CUB’s website, but not actually stepping foot inside the building, nor interviewing anyone related to the Anna Louise Inn. Triantafillou spoke at great length about semantics and language regarding technicalities of legal wording and definitions; essentially Triantafillou’s role was to say in polite ways that the Anna Louise Inn was inappropriately placed. Everyone in the courtroom seemed bored and even Judge Nadel yawned repeatedly and chewed on his glasses while signing over papers that seemed unrelated to the case before him.

The excitement of a courtroom drama emerged, however, when it was the defense’s time to cross-examine the witness. Aggressively, the defense challenged Triantafillou’s credibility by citing various documents that he failed to read when researching the Anna Louise Inn and the programs with which it is associated such as the successful “Off the Streets” program that helps former prostitutes learn life skills that can keep women from returning to the sex trade. Triantafillou had not read the three-binder report from the Zoning Board hearing of September 19, and he was under the impression that the women of Anna Louise were all homeless; he did not know that they actually paid rent to live there. Triantafillou was unaware which services were offered onsite or offsite, and the more the defense questioned him the more Triantafillou answered, “I don’t know.”

Part of Triantafillou’s role was to vilify the women of Anna Louise, claiming that the “Off the Streets” program created “friction.” When challenged to explain what this “friction” entailed, Triantafillou could only vaguely cite a conversation his wife had once had with a woman sitting on a bench in Lytle Park outside the Anna Louise Inn. The woman on the bench, who may or may not have been associated with the Inn, said some disparaging things to Triantafillou’s wife about the Inn and this was the only evidence of “friction” that Triantafillou could muster. The defense pointed out that since the inception of the “Off the Streets” program in 2006 there had been no police citations for prostitution in the Lytle Park area. As a paid witness, Triantafillou seemed like a bad investment by the insurance company.

Triantafillou had taken the stand at 10:45 a.m. It was not until 2:20 p.m. that defense witness Greg Dale was sworn in for his testimony. Like Triantafillou, Dale was also a hired consultant there to give his expert opinion as evidence. The defense also focused on semantics and definitions, looking specifically at the wording of types of zoning such as office, dwelling unit, family, and multi-family dwelling. The case against CUB is that they do not qualify for any of these terms because a “non conforming usage” in the offer of “special services” that are not permitted by the zoning definitions. The defense argued that everything that CUB did inside the Anna Louise Inn did conform, and further observed that the services such as counseling and rehabilitation to which Western & Southern were objecting actually took place offsite. Much effort was laboriously made to illustrate that the usage of the Anna Louise Inn was plainly a mixture of administrative offices and residential units, all of which the Hamilton County Zoning Board has now twice approved and declared legal.

Barrett’s cross-examination of Dale did not appear fruitful as the defense witness refuted the wording of many of the plaintiff’s questions. Barrett attempted to get Dale to admit that the Anna Louise Inn was “supportive housing,” but Dale repeatedly pointed out that Barrett was mixing the terminology. While Ohio zoning law does define an office, a dwelling unit, a family, and a multi-family unit, it has no language regarding supportive housing. The definitions of supportive housing presented to the court were from agencies that offered such programs, but Barrett continually mixed the definitions as though they were from the same documents. After several attempts to lead Dale, Barrett seem to give up; he stood at the podium and said nothing as he stared off at some distant thought of how to unravel Dale, but that thought did not emerge.

At 3:30 p.m. the plaintiff was done with the defense’s witness, Nadel’s cellphone went off in court, everyone laughed as Nadel shrugged and said with a smirk, “It won’t hurt anything.” At this point the Cincinnati City Solicitor wanted to question the witness as well, but Nadel cut him short, saying that they had “Argued the case to death.” Evidently the missed cellphone call was something important as Nadel seemed in a hurry to leave. He was not, however, in a hurry to decide upon the case and opened up to the defense and the plaintiff when to reconvene court. Burke and the defense tried to secure seven days, but Barrett requested December 23until it was pointed out that this was the day before Christmas Eve. Nadel nodded and declared that December 28 would be the new date taking the defense’s request for a week and turning it into two weeks.

In August, at the first court hearing, the defense delicately accused Western & Southern of “judge shopping” by filing at a time when they knew they would get Judge Nadel whose case record has often favored big businesses. The defense also accused Western & Southern of playing a game of delay tactics to outlast the limited resources of the nonprofit CUB and to jeopardize the time sensitive grants upon which the Anna Louise renovations rest. Whatever speculations some may make about this case, it is clear that Judge Nadel is no hurry to make a decision even though the Zoning Board ruled in favor of CUB a second time in September. Until December 28 we must all hold our breath, but many would not be surprised if this case spills into 2012 at this rate.

Given that Western & Southern has such a rich history of helping the community, sponsoring Nativity scenes, actually donating money to the Anna Louise “Off the Streets” program, it seems like such a poor public relations exercise to so aggressively pursue a court action against CUB. It is sadly ironic that Western & Southern provides a home for mannequins dressed as Joseph, Mary, and Jesus, while working so hard to deny their neighbors the legal right to improve their home.

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