Council Draws Line in the Sand: Ward 4 Rezoning Vote Is Not Negotiable

Developer Lance Osborne’s proposed Get-Go development agreement requires Council to put an issue changing the city’s zoning code on the ballot. Council was unimpressed.

OSBORNE’S PROPOSED DEVELOPMENT AGREEMENT

On January 24^th, developer Lance Osborne confidently claimed that he would have detailed development agreement (DA) covering his proposed mega “Get-Go” gas station/café development in hand by January 30^th.  He didn’t.

Osborne reappeared at the February 21^st Committee of the Whole meeting (COW) with what Council President Cathy Murphy called a “shell of a document.”
Dated February 16^th, the DA exhibits were blank. That was pretty surprising, as Osborne had said earlier that the exhibits would spell out all of the nitty-gritty details for his proposed mega “Get-Go” development, including the site, landscaping, signage and “Get-Go” plans.

Interestingly, one thing the DA did have: a provision allowing Osborne to “assign” (i.e., transfer) his rights to someone else.
While that may be mere boilerplate language, it also might indicate what some people in the community already suspect: that Osborne is merely acting as a front man for Giant Eagle—or someone else—in the effort to install a mega “Get-Go” on the Catalano’s lot.

Osborne’s proposed DA requires Council to pass an ordinance,

“…amending Sections 1131.04(c) and 1131.05 of the City’s Zoning Code.”

 That provision signaled that Osborne was sticking to his guns and insisting that Council go along with his scheme to avoid putting a rezoning issue before the voters.

The decision about whether to go with a rezoning or a zoning code change ballot issue is an important one. The Highland Heights Charter requires both city-wide and impacted ward approval before a piece of property can be rezoned.  Only city-wide approval is necessary, however, to change the city’s zoning code.
In pursuing the zoning code change route, Osborne is clearly trying to bypass Ward 4 residents’ Charter rights. Significantly, the zoning code changes that he wants would allow large buildings and gas stations to be put on all business-zoned properties in the city

The DA’s zoning provision triggered Council’s displeasure.

Council President Cathy Murphy told Osborne,

“It’s been shared with you that it’s necessary that we see this as a rezoning issue on ballot.”

She explained,

“We’re just a city council and a mayor. We’re a small city.  We’re just trying to do our jobs.
You are a big developer in this area. Giant Eagle is a big corporation. You guys are the big guys. You are the ones who have to move to us if you are seeking our assistance.
We cannot represent your interests and sidestep our charter. Our job is to represent our residents, to protect them. It is an untenable position for you to ask us otherwise.”

She then asked,

“Is there any chance of reconsideration on your part and on Giant Eagle’s part relative to ballot issue?”

Osborne replied,

“We’ll revisit it, but I’m not optimistic.”

 Interestingly, Osborne claimed that he had absolutely no idea that the city wanted a rezoning issue (requiring a Ward 4 vote) until after he turned in his zoning initiative petition last August.   He told Council,

“We were advised by the city not to pursue a lot split (rezoning issue).  The city has advised us in the past not to pursue that.”

When asked who in the city gave him that advice, Osborne said,

“The Planning (& Zoning) Commission and…some administrators who reviewed (our) proposed ordinance.  No issue was raised until after our petitions were gathered.”

I generally expect that developers will spin facts to suit the story they want to tell. But I was astonished at Osborne’s claim.
It’s pretty foolish to spin a tale when there are public documents refuting the bill of goods you’re trying to sell.

OSBORNE HOODWINKED BY COUNCIL: FACT OR FICTION?

Osborne began collecting signatures for his zoning initiative petition drive on July 27th, 2011.  He turned his petition into the city on August 2^nd.

So if Osborne is telling the truth, there should be no record that Council communicated its stance on the Ward 4 rezoning issue to him prior to August 3, 2011.  

Unfortunately for Osborne, the public records don’t back him up.
Here are some excerpts:

Osborne and/or Giant Eagle (GE) representatives began discussing the proposed mega “Get-Go” development with Council at a December 14, 2010 COW meeting.  A GE rep said,

 “…they  understand some of the restrictions with the current zoning as it relates to fuel stations. In the front of the site they are proposing a Get Go/convenience store/gas station/car wash.  To the rear of the property they would propose approximately 18,000 (square feet) of local retail.
(Councilman Bob) Mastrangelo …questioned the zoning and advised that if they subdivide the property, it would create two nonconforming parcels. 
(A GE rep) suggested changing the definition of uses under that category to allow what they are trying to do.
(Councilman Ed) Hargate …commented that this intersection has always been the signature intersection for the City of Highland Heights and … many…have worked hard over the years to try to improve the zoning in this particular area….having a Get Go in that vicinity, which is the intersection that defines this community is, in his opinion, uninspiring. “

http://www.highlandhts.com/docs/city_council/committee%20minutes/2010/12-14-10_council_committee_minutes.htm

P&Z discussed the “Get-Go” zoning issue a month later, during a January 10, 2011 meeting:

“The (Catalano’s) property … is currently zoned as Local Business and a change in zoning would be required to allow gas pumps.  A zoning issue must be put on the ballot, either by City Council putting it on the ballot or the property owner collecting signatures on petitions. 
Voters would have to approve the zoning both city-wide and in Ward 4 where the property is located. 
(Former P&Z) Chairman Mastrangelo… said this proposal has been presented to City Council, which has to decide if the City is interested in this type of use and the best way to rezone it.  He said there are many concerns, including zoning classification... and issues regarding a lot split of the property to accommodate the different proposed uses.”

 http://www.highlandhts.com/docs/planning_and_zoning/meeting%20minutes/2011/01-10-11_P&Z_minutes.htm

At a January 18, 2011 COW meeting Council touched on the zoning issue again:

“(Councilman Bob) Mastrangelo noted a zoning change goes to the voters and the residents of Ward 4; but, if they change the code to allow this use as an accessory use for a gas station/car wash, Ward 4 would have no say so.  Mr. Mastrangelo explained that the conditional use is a problem for the developer…”

http://www.highlandhts.com/docs/city_council/committee%20minutes/2011/01-18-11_council_committee_minutes.htm

 Osborne and GE representatives appeared at a July 11^th P&Z meeting with a lot-split (rezoning) drawing in-hand, looking, “for guidance (on) how to proceed”:

“Several options were discussed as to ways to allow the gas station at this site.  The consensus of the Commission and Councilperson (Cathy) Murphy who was in attendance was that Law Director Paluf be consulted and to involve voters in all decisions.
The applicants submitted a site plan showing a lot split of the property into a parcel for GetGo and a parcel for the retail building. … Chairman Mastrangelo stated he is not in favor of the proposed lot split because more variances would be required…
No decisions were made regarding the proposed plans.”

http://www.highlandhts.com/docs/planning_and_zoning/meeting%20minutes/2011/07-11-11_P&Z_minutes.htm

 The zoning issue came to a head the following day, at a July 12, 2011 COW:

“(Councilman Bob) Mastrangelo reported (that) at the Planning & Zoning Commission meeting last evening…they focused more on the zoning issues.  The presentation was for a possible option to do a lot split with one lot zoned motor service and the other local business.  A couple (of) people did not think that was the way to go.  Variances will be needed regardless of which way they go.  They probably need less variances if the property is kept as one lot versus trying to split it…(Mastrangelo) thought there is support for the proposal; it is just a question on how to do it.
Further (Council) discussion was held regarding motor service and general business zoning and allowing motor service in general business zoning.  This option would require (just) a city wide vote (as) it is not regarding a particular property.
(Ward 4 Councilwoman Lisa) Stickan stated she was uncomfortable doing that.  The way they presented this to the voters from the beginning is that the issue would have to be approved by Ward 4 residents in addition to citywide. 
Mayor Coleman stated he would be concerned with any proposal that takes this proposal out of the vote of the people.  That is something they have talked about from the start and he thought it is pretty critical that it remains that way.  They have told the people in Ward 4 that they would have a say in addition to the City as a whole.
(Councilman Ed) Hargate added that his preference would be that voters city wide would vote on this proposal and that the voters in Ward 4 should also have the right to approve or disapprove it. 
(Councilwoman Cathy) Murphy agreed. “

http://www.highlandhts.com/docs/city_council/committee%20minutes/2011/07-12-11_council_committee_minutes.htm

 Two weeks later, on July 25^th, Osborne informed P&Z that,

“… he is not requesting a lot split (rezoning issue) as previously proposed.”

http://www.highlandhts.com/docs/planning_and_zoning/meeting%20minutes/2011/07-25-11_P&Z_minutes.htm

So there you have it.
On July 12^th Council members and the mayor explicitly told Osborne that a rezoning issue requiring Ward 4 approval was necessary and that such a vote had been promised to Ward 4 voters “from the beginning.”

In response to that July 12^th conversation, Osborne decided to withdraw his lot split (rezoning) request and mount an initiative petition drive to change the city’s zoning code instead.

So as to Osborne’s claim that ,

“No issue was raised (about requiring a Ward 4 vote) until after our petitions were gathered”

Taking inspiration from “Politifact,” the organization that fact-checks the truthfulness of political claims, I’d say Osborne’s claim rates a

“Pants on Fire”.

What do you think?

Planning & Zoning Commission: Loose Cannons on Deck?

Last Monday , the Highland Heights Planning & Zoning Commission approved a “ leasing” sign for a non-existent retail development. ....What’s up with that?

SIGNS IN HIGHLAND HEIGHTS: THE BACKSTORY

Last year Highland Heights updated its sign ordinances. They are pretty detailed and impose different requirements depending on the type of sign and type of property involved.  Only political signs are exempt, for First Amendment reasons.

Anyone wanting to put up a non-political sign in the city must: 1) go the building department; 2) submit an application; 3) pay a fee; and 4) obtain a permit from the Building Commissioner.  The Commissioner is the only one authorized to approve sign permit applications and issue sign permits. 

According to Ordinance 1145.02(27), all sign permit applications must be signed by the owner of the property where the sign is to be erected. There is one exception for “tenants;” they can apply for a sign as long as they provide “written consent of the owner of the building, structure or land to which or on which the sign is to be erected” (1145.13(6)). 

The Planning & Zoning Commission (P&Z) usually isn’t involved in the sign permitting process, and when it is involved it has a very limited role. 

P&Z’s involvement isn’t triggered until after a sign permit application is filed; the application determines whether or not P&Z approval is necessary for the issuance of a sign permit.
For example, if a property owner wants to install both free-standing and attached signs on his or her property, Ordinance 1145.13(b) states that P&Z must determine,

“the necessity for (the) free-standing sign to the conduct of the business, profession or commercial activity on the site in deference to or in addition to an attached sign prior to issuance of a permit.”

Likewise, P&Z approval is required if the requested sign will violate the city’s Zoning and Building Codes. The standard for granting a variance is a pretty high one. P&Z can only grant variances “in instances of unnecessary hardship” (Ordinance 1113.01). Section 1113.04 requires at least 10 day’s prior notice and a public hearing before P&Z can act on variance requests.

Under the city’s statutory scheme, P&Z has no business getting involved with a sign request unless and until a properly authorized sign application has been filed with the city, and then its role is limited to voting up or down on a dual sign or sign-related variance requests. 

At least, that’s how it’s supposed to work.

THE CONTROVERSY

P&Z’s February 13^th agenda contained this item:

3.      The Shoppes at Brainard Crossing, 5612 Wilson Mills
 Review Request for Variance for a Proposed Construction Sign;
Schedule Public Hearing

The agenda didn’t disclose who made the request (developer Lance Osborne) or specifically identify that pertained to the Catalano’s property.  (It turns out that “The Shoppes at Brainard Crossing” is what Osborne calls his proposed mega Get-Go development----which is kind of funny, given that the first sign that everyone will see will be a huge “Get-Go” sign, should the development come to pass.)

Anyone looking at the P&Z agenda would (quite properly) have figured that they would have a chance to weigh in on Osborne’s sign request at an upcoming public hearing.

They might have thought that, but they would have been wrong.

Councilman Bob Mastrangelo---Council’s representative on P&Z---reported at the February 14^th Council meeting that  Osborne decided to drop his variance request.
Although that should have ended P&Z’s involvement, Mastrangelo said that P&Z nevertheless went ahead, took a vote and:

“…approved a sign for the Shoppes at Brainard. It’s not a construction sign.  P&Z approved a (4 foot by 8 foot) leasing sign.”

 Mastrangelo indicated that the sign’s purpose is really political: it's a way of communicating with residents with regard to the as-yet undetermined “Get-Go” related zoning issue that will appear on the November 2012 ballot.

That certainly makes more sense than calling it a "leasing sign," especially given that there are no developed retail spaces actually available for rent on the Catalano’s property.

P&Z: LOOSE CANNONS ON DECK

After the Council meeting, I asked Building Commissioner Dale Grabfelder for a copy of Osborne’s sign permit application.  Grabfelder responded on February 16^th:

“I do not as of this time have a permit application for the sign. Mr. Osborne has not submitted plans yet for permits.”

 Wow. So that means P&Z acted like a loose cannon on deck, with developer Lance Osborne at the helm, steering the boat.

 P&Z didn’t have the authority to consider Osborne’s sign request because: 1) Osborne doesn’t own the Catalano’s property; and 2) even if he did, he never submitted a sign permit application to the Building Commissioner, which is what kicks off the permitting process to begin with.  In addition, once Osborne dropped his variance request, any excuse for P&Z involvement ended.

Yet P&Z went ahead and “approved” Osborne’s purported “leasing” sign anyway.

This isn’t the first time Osborne has attempted to bypass city ordinances in connection with his mega “Get-Go” development plan. We saw that behavior before---repeatedly---in his attempt to rush a “Get-Go” zoning related issue onto the ballot.

President of Council, Cathy Murphy, was not pleased.

“I do not understand why the sign was approved. It doesn’t say anything about the “Get-Go”.…without a “Get-Go” there are no “Shoppes at Brainard.” The two are together.  You are telling residents only half the story….It’s premature to have a lease sign up. There won’t be any leasing if there is no “Get-Go.”

Councilman Ed Hargate agreed,

“(P&Z) shouldn’t approve anything until there has been preliminary approval of site development plans. That hasn’t been the case.”

Murphy is right. The  “leasing” sign that P&Z approved is deceptive and misleading.

Osborne has repeatedly said that his interest in developing the Catalano’s property is contingent on a mega "Get-Go" gas station and convenience store/café being installed there and that his development deal with Giant Eagle will expire before November---before a “Get-Go” related zoning issue is put on the ballot.

And, of course, none of the retail space that Osborne wants to advertise even exists----and it may never exist if residents vote no on the “Get-Go” zoning issue.

Fortunately for residents and the city, since P&Z doesn’t have the authority to approve sign permits, their approval of Osborne’s proposed leasing sign has no legal effect.  

Osborne can’t erect a sign unless he first obtains a sign permit, and he can't apply for a sign permit because he doesn't own the Catalano's property.  It’s highly unlikely that the city's Building Commissioner would approve Osborne’s sign in any case, since it is so clearly misleading to the public.

RESIDENTS SPEAK OUT IN OPPOSITION TO FRAC DRILLING IN THE PARK

Quite a few residents attended the February 14^th Council meeting in response to agenda item #4, a resolution (once again) authorizing Mayor Scott Coleman to sign a lease allowing Bass Energy to drill frac gas wells in the Community Park.

In 2008, 3,607 residents voted to approve amending our city Charter to protect the city’s parkland from,

“…commercial exploitation of the parkland’s natural resources, including gas or oil wells, logging and mining..”

3,607 residents….that’s almost 33% more residents than voted to re-elect the mayor last November.

I expressed my anger at seeing item #4 on the agenda and then discussed something else: Council’s failure to exercise due diligence with regard to the new proposed drilling lease.

The first lease that Mayor Scott Coleman signed in 2007 was a Bass-supplied lease. It was written to protect Bass’s rights and interests, not the city’s.

Council is proposing to have the mayor sign essentially the same Bass-supplied lease.
 Council has not consulted with a mineral rights or drilling lease expert, nor have they added vital provisions to protect the city, including provisions addressing: default remedies, stream and ground water monitoring, the use of evaporators, the re-purposing of the wells to store toxic drilling waste, the millions of gallons of water that Bass will need to frac two gas wells, and royalties payments for other marketable minerals and gases, besides gas and oil, that Bass might obtain from the wells.

As I stated, at the end of my remarks:
 

Before you rush forward with a new lease, do some due diligence.  Take the time to consult with a drilling lease expert .

You owe it to Highland Heights residents to do that.

It’s the least you can do, since apparently you won’t respect their wishes to keep gas wells out of the park.

It’s the least you can do before you continue down this very foolish and dangerous path.

This is what Osborne's proposed "leasing" sign looks like

The hearing request form that Osborne submitted, as "owner"

To Tote Or Not To Tote

Highland Heights had 4 bidders and lots of options to think about when considering the city’s new garbage collection contract.

Toters? Yes or No? For Garbage or For Recycling Too?

Three years ago, only two garbage companies submitted bids in response to Highland Heights’ and Mayfield Village’s joint garbage contract solicitation.

This time around there were four bidders, a turn of events that delighted Highland Heights Service Director Thom Evans.

But the lead story, according to Evans, was even better:

“We’re going to save a lot, a lot of money. We should save in the 1^st year $150,000 by opting out of the city’s current contract, and save $250,000 in the second year.”

That’s great news, especially given that the city’s last garbage contract came with a huge cost increase.
One wrinkle in the financial picture is the new contract’s fuel surcharge provision, which allows the winning company  (Kimble, the city’s current contractor, formerly known as J&J) to add .5% to its monthly bill for each 10 cents that the cost of diesel fuel exceeds an agreed-upon base figure, which was set in early January.  That provision works both ways. The city could get a reduced bill in the very unlikely event that the cost of diesel dips below the base figure.

Accepting Kimble’s bid was a no-brainer.
What stumped Council was deciding between contract options. The city can keep its current system (resident-owned garbage cans and recycling bins), switch to Kimble-provided 96 gallon “toter carts” for garbage, or use Kimble-provided toters for both garbage (96 gallon) and recycling (64 gallon).
The advantage of the recycling toters is ease of use: residents will be able to throw all of their recyclables---whether paper, plastic, cans and bottles---into the toter. Under the city’s current system, residents have to separate paper from other recyclables.  

While generally liking the idea, Council President Cathy Murphy questioned whether switching to Kimble-supplied toters for both garbage and recycling would be too abrupt a change for residents. She also was concerned that some residents might feel overwhelmed trying to find space in their garages for the toters.

Councilman Ed Hargate clearly signaled his views on the matter. He declared that, even if Kimble gave him a toter cart for his garbage:

“I won’t use it ...I’d use bags.”

That would be no problem, according to Evans. Toters would be offered to residents, but they wouldn’t have to use them.

For his part Mayor Scott Coleman favored going totally toter:

 “If we’re going to recycle and do recycling, a toter cart is the best option. It is most convenient, it will encourage recycling, and it will allow for more types of recycling.

Councilman Bob Mastrangelo agreed:

“If you are looking at the long term….sooner or later (landfill) costs will go up. Why wait 3 years (to add recycling toters). I’d probably have trouble getting it in my garage, but I’ll find room.”

 An ordinance awarding Kimble a $2,751,446.64, five-year contract is listed on the agenda for a first reading on February 14^th .

What’s Up With High School Tennis?

Last spring a group of Mayfield School supporters announced ambitious plans to raise $3 million to renovate Mayfield High School’s football field and outdoor athletic facilities.  

In a recent presentation, the architect for the “Wildcat Park” project told the Mayfield Village Planning & Zoning Commission:

“(The high school) Tennis courts are being removed and will not be replaced…All of the teams play at Highland Heights now.”

http://hillcrest.patch.com/articles/mayfield-high-stadium-renovation-plans-ready-for-approval

Say what?

Although my youngest kid (a varsity tennis player) had an occasional JV practice or meet in the Community Park, her varsity practices and matches were always held on her home courts, i.e., the lighted tennis courts behind Mayfield High School.

Interestingly, there has been absolutely no public discussion between “Wildcat Park” representatives and Highland Heights Council regarding the architect’s plan to remove those tennis courts and move the Mayfield High School tennis program to the Highland Heights’ Community Park.  (That plan certainly reveals what a low priority tennis holds for “Wildcat Park” supporters, doesn’t it?)

While it’s nice to be neighborly, such an arrangement would clearly require some serious discussion and negotiation. There’s a lot of questions that would need to be answered, such as:

• Who would pay for tennis court upkeep and improvements?

• Will Highland Heights residents be denied access to the tennis courts during the high school fall and spring tennis seasons?

• And will Highland Heights residents be expected to pick up the tab for both security and liability coverage during school-related tennis activities at the Community Park?

It’s pretty mind-boggling that the architect would present a plan for “Wildcat Park” that hinges on using  Highland Heights’ recreational facilities when the possibility of doing that hasn’t even been discussed with Highland Heights Council.

At a Sunday budget meeting, Mayor Coleman said that the architect misspoke, but he also added,

“The (high school) courts will be down, but that is not their long-term plan (to use Highland Heights’ tennis courts).”

Despite the mayor’s reassurance, the reality is that no tennis courts appear in the “Wildcat Park” plans approved by Mayfield Village last week.

Fortunately there should be plenty of time to figure this all out. According to several recent stories, the first phase of the Wildcat Park project alone will cost $3.5 million, but only $300,000 in cash and $100,000 pledges has been raised so far to pay for that work.

http://hillcrest.patch.com/articles/wildcat-park-project-plans-are-approved

http://www.cleveland.com/hillcrest/index.ssf/2012/02/mayfield_schools_wildcat_proje.html

Tidbit from Last Week’s Groundhog Day Celebration:

The mayors and Mayfield School representatives get together once a year on Groundhog Day.  I found this tidbit from their most recent gathering quite interesting.  As reported in Patch, retiring Mayfield School Superintendent Phil Price,

“… asked (the) mayors what they would like to do if money was no object.
 (Mayfield Heights Mayor) Costabile had two wishes, one was to address all storm water management issues and the other was to develop a place along Mayfield Road that could provide recreation for people of all ages and serve as a downtown.
That answer was echoed by (Gates Mills Mayor) Riley and (Highland Heights Mayor) Coleman.
Riley said the Gates Mills community center is starting to show its age, while Coleman said a downtown area would be nice in Highland Heights. But Coleman also wished for higher ground so there would be no more storm water issues.”

http://hillcrest.patch.com/articles/mayfield-alliance-celebrates-groundhog-day

Osborne/Get-Go: More Hurry Up  And Wait

On January24th, developer Lance Osborne told Council that he hoped to have a draft development agreement for his proposed mega “Get-Go” project in hand within the next few days or by Monday January 30^th at the latest.
Hearing that, Council agreed to put Osborne on the agenda for its February 7th Committee of the Whole meeting.
Council President Cathy Murphy also made clear, however, that in addition to the development agreement,

“What we want to discuss on February 7 is the ballot language (for a “Get-Go” related zoning issue). You have asked for our support. We’ve discussed with you that we want a component (of the zoning issue) to be independent approval by Ward 4. We have asked the law director to come up with some language…on how that might be accomplished. And we will discuss that as well…It is very critical, crucial and important to us that Ward 4 have independent voice on it.
The hope is that there can be some accord that is reached as far as that is concerned…If we have that and a development agreement, Council will look with favor on providing you with assistance on the ballot issue.”

When February 7^th rolled around, Osborne---and his proposed development agreement---were no-shows. Murphy reported that Osborne told her that he wasn’t ready to continue the discussion.

Council went forward with its planned discussion of possible zoning issues anyway.
Law Director Tim Paluf’ recommended putting an issue on the ballot that would rezone the front portion of the Catalano’s property from Local Business to Motor Service.
That approach would be most consistent and compatible with the city’s current zoning code and would require both city-wide and Ward 4 approval.

Councilman Bob Mastrangelo----an outspoken supporter of both Osborne and his proposed mega Get-Go development plan---declared,

“I am dead set against a lot split. …There will be variances and set back issues. It will open a whole can of worm. We are kidding ourselves to think that Giant Eagle will agree. They are not just going to let anything like that happen.  We are kidding ourselves if we think they (Giant Eagle) will agree to a lot split to let Ward 4 vote… Looking at it from their point of view, they can be held hostage..”

Murphy didn’t buy Mastrangelo’s concerns about the need for variances.

“That would be understood, and we could put that into the development agreement.”

To be continued….

Frack Gas Wells Coming To Highland Heights Park?

The agenda for the February 14^th Council meeting contains this item:

Proposed Resolution authorizing the Mayor to execute a lease with Bass Energy Incorporated for the installation of two (2) gas wells in the Municipal Park in order to resolve a pending lawsuit. (Mayor Coleman and Council as a Whole)

That’s a Valentine’s Day gift for Bass Energy, the drilling company that sued the city  several years ago.

That agenda item is very bad news for the 3,607 Highland Heights residents who voted in 2008 to keep gas wells out of the Community Park.