Several residents have contacted me in response to my last posting: NEW GETGO QUESTION: CAN THE PROPOSED GETGO CONVENIENCE STORE LEGALLY SELL PREPACKAGED ALCOHOL TO THE DRIVING PUBLIC?
They have all asked the same question:
Doesn't this no-retail alcohol sale restriction apply to every gas station in Highland Heights?The answer is no.
According to the HHTs zoning map, only one gas station is actually located in a Motor Service District.
The rest are sitting on property that is zoned for business use.
http://www.highlandhts.com/docs/pdf%20files/Highland_Hts_map.pdf
That distinction is important: while retail alcohol sales aren't allowed in Motor Service Districts, they are allowed in local and general business districts.
According to the zoning map, only 2 lots are currently zoned as Motor Service Districts in HHts----one is at the corner of Bishop and Highland (Tom's Auto Repair) and the other is at the corner of Alpha and Wilson Mills ( the gas station in front of the Shoppes at Alpha Place).
Presumably the other gas stations sell gas---despite the fact that they are zoned for business (not Motor Service) use---because the gas station use is "grandfathered".
Basically, if the property was used as a gas station before the current zoning laws took effect, that use can continue (but not be expanded) even though the property now has business use zoning.
Developer Lance Osborne has a lot on the line here---since the retail alcohol sale restriction would also apply to the gas station in front of The Shoppes at Alpha Place.
Ironically, the Shoppes at Alpha Place gas station was rezoned to a Motor Service District as part of Osborne's redevelopment of the Alpha/Wilson Mills corner.
Was somebody trying to set a precedent---to have the city look the other way regarding retail alcohol sales at Osborne's Alpha Place gas station, so that Osborne could later claim the same treatment for the GetGo convenience store?
If that was the plan, Osborne may be out of luck.
Ohio courts have consistently held that property owners can't use a city's prior failure to enforce the zoning code as a defense to their own failure to comply with the zoning law.
And---of yes---state law also allows property owners to enforce the zoning code, if their city fails to do so.
Like I said before, this whole situation could easily addressed through a ballot issue in November--one asking residents to amend the current code to allow retail alcohol sales in Motor Service Districts.
I suspect that's not a very popular alternative for either Osborne or our elected officials.
The far easier route for them is to do what they have been doing all along---look the other way as the city pursues what appears to be a quite questionable policy of not enforcing the ban on retail alcohol sales in Motor Service Districts---a ban explicitly set out in the Highland Heights zoning code.
