SURPRISE, SURPRISE(S)
DECK DISPUTE HEARING POSTPONED
I was surprised to see a Highland Heights police vehicle stationed in front of the City Hall entrance and even more startled to see a police officer standing guard at the Council Chambers door, watching residents stream into last Monday’s Planning & Zoning Commission (P&Z) hearing.
And stream in they did.
By my count roughly 50 visitors were in attendance---a huge number for a P&Z meeting.
DECK DISPUTE HEARING POSTPONED
I was surprised to see a Highland Heights police vehicle stationed in front of the City Hall entrance and even more startled to see a police officer standing guard at the Council Chambers door, watching residents stream into last Monday’s Planning & Zoning Commission (P&Z) hearing.
And stream in they did.
By my count roughly 50 visitors were in attendance---a huge number for a P&Z meeting.
Why the armed police protection?
I haven’t a clue.
Although they may be quite vocal in expressing their views and disagreements, I’ve never seen any Highland Heights resident conduct themselves in a threatening manner at any public meeting---and I’ve attended quite a few during the last 5+ years that I’ve been writing this blog.
Although they may be quite vocal in expressing their views and disagreements, I’ve never seen any Highland Heights resident conduct themselves in a threatening manner at any public meeting---and I’ve attended quite a few during the last 5+ years that I’ve been writing this blog.
Do you suppose city leaders expected a fist fight to break out?
There were other big surprises at last Monday’s P&Z hearing as well.
The meeting began with P&Z member Rob Warner stepping away from the table and seating himself in the audience.
In another infrequent appearance, Law Director Tim Paluf announced, without any on-the-record, public explanation, that Warner “had a conflict of interest”.
It turns out that the disputed deck owners hired an attorney from Warner’s law firm to represent them at the hearing, thereby creating a conflict of interest requiring Warner’s recusal (disqualification from ruling on the deck dispute).
Some residents speculated whether the move was a strategic one on the deck owners’ part, given that Warner has shown himself to be somewhat of a stickler when it comes to following the letter of the law in zoning matters.
The meeting began with P&Z member Rob Warner stepping away from the table and seating himself in the audience.
In another infrequent appearance, Law Director Tim Paluf announced, without any on-the-record, public explanation, that Warner “had a conflict of interest”.
It turns out that the disputed deck owners hired an attorney from Warner’s law firm to represent them at the hearing, thereby creating a conflict of interest requiring Warner’s recusal (disqualification from ruling on the deck dispute).
Some residents speculated whether the move was a strategic one on the deck owners’ part, given that Warner has shown himself to be somewhat of a stickler when it comes to following the letter of the law in zoning matters.
I don’t have a clue but strategy does seem to count in the world of litigation.
The last surprise. That came after the hearing started when, in response to a
query from appellant Grant Mackay, P&Z Chair Vince Adamus confirmed that
P&Z member Bill Urban was absent, thereby further reducing the hearing
panel from 5 to 3.
That raised a significant issue given that Mackay and his fellow neighbors need 3 votes to overturn the deck permit.
That raised a significant issue given that Mackay and his fellow neighbors need 3 votes to overturn the deck permit.
Instead of needing a mere majority of votes in their favor (the case in most hearings), the neighbors suddenly found themselves facing a much higher burden of persuasion: unanimity.
That was a particularly surprising turn of events because on July 7th,
when the hearing was scheduled, P&Z member Bob Mastrangelo emphasized the
need to have every P&Z member present and everyone, including Urban,
confirmed that they would be there.
Adamus gave Mackay three options: (1) holding the hearing and having the remaining 3 members vote on it that night; (2) starting the hearing without Urban and carrying it over to the next P&Z meeting; or (3) simply rescheduling the hearing for August 25th.
After consultation the neighbors chose option 3.
Adamus gave Mackay three options: (1) holding the hearing and having the remaining 3 members vote on it that night; (2) starting the hearing without Urban and carrying it over to the next P&Z meeting; or (3) simply rescheduling the hearing for August 25th.
After consultation the neighbors chose option 3.
The public hearing on the disputed deck, which was installed last May, 11 feet from the rear property line, next to an existing Rutland Drive above-ground pool, will be held on August 25th.
Hopefully all 4 P&Z members qualified to decide the appeal will be in
attendance.
I would expect so.
But what happened this week raises a very troubling question:
I would expect so.
But what happened this week raises a very troubling question:
Between mayoral politics and legal strategy, have the neighbors been treated fairly, and is it right and just that the P&Z hearing ante has been raised, leaving them with a significantly increased burden of persuasion (3 out of 3 instead of 3 out of 5)?
MAKES-NO-SENSE LITIGATION
Having trained with a litigation firm, I know there are a lot of reasons---some good, some not---for hiring lawyers and pursuing litigation.
As a legal analyst I’ve seen what happens when heart (or stubbornness) rules over head:
Having trained with a litigation firm, I know there are a lot of reasons---some good, some not---for hiring lawyers and pursuing litigation.
As a legal analyst I’ve seen what happens when heart (or stubbornness) rules over head:
People can spend tons of time and money to “win” their case, only to take a financial bath due to legal fees.
That’s one of the real costs of litigation.
That reality came to mind during last Monday P&Z hearing.
What with attorney prep, travel and appearance time I “guesstimate” that the disputed deck owners have already spent close to a grand on legal fees…with more to come given the postponement of the hearing to August 25th.
You have to wonder:
That reality came to mind during last Monday P&Z hearing.
What with attorney prep, travel and appearance time I “guesstimate” that the disputed deck owners have already spent close to a grand on legal fees…with more to come given the postponement of the hearing to August 25th.
You have to wonder:
How much would it cost the owners to simply move the disputed deck away from the rear property line, thereby making peace with their neighbors and complying with the zoning code?
I’m guessing a lot less than what they’ve already spent on legal fees.
A lack of commonsense and unwillingness to compromise in order to live harmoniously with others seem to be at the heart of most neighbor-vs-neighbor disputes.
From where I sit that almost certainly seems to be the case here.
ZONING VIOLATION RECIDIVISTS?
Apparently this is not the disputed deck owners first run-in with the city’s zoning laws.
ZONING VIOLATION RECIDIVISTS?
Apparently this is not the disputed deck owners first run-in with the city’s zoning laws.
Is there a pattern of behavior here?
You decide for yourself.
I was told this tale by one of the individuals involved:
I was told this tale by one of the individuals involved:
A few years ago the disputed deck owners decided to put a fence in their backyard.
Next door was a permitted fence, installed by an adjoining neighbor.
The disputed deck owners told their neighbor that they intended to run their fence right up to the neighbor’s fence.
The neighbor told them not to do that.
The neighbor explained that due to the presence of a drainage swale, they had placed their own fence well into their own yard, well back from their property lines.
No matter.
The disputed deck owners did as they pleased.
They trespassed onto the neighbor’s property with their fence.
The disputed deck owners' fence was later moved because (no duh), as installed, it violated the city’s zoning code.
GOOD NEWS: “BRAINARD CROSSING” A SUCCESS…
DID TAXPAYERS PAY TOO MUCH FOR THE ECONOMIC DEVELOPMENT DEAL?
On July 29th Council passed Resolution 24-2014 (as an emergency measure, suspending additional readings). The legislation allows Mayor Scott Coleman
DID TAXPAYERS PAY TOO MUCH FOR THE ECONOMIC DEVELOPMENT DEAL?
On July 29th Council passed Resolution 24-2014 (as an emergency measure, suspending additional readings). The legislation allows Mayor Scott Coleman
“…to execute a release agreement for a portion of the (Brainard Crossing) property….from (a) mortgage…”
Council members didn’t receive a copy of the release agreement prior to meeting.
Nevertheless, President Cathy Murphy informed Council:
Nevertheless, President Cathy Murphy informed Council:
“We need to pass it (the resolution) tonite.”
So they did.
The economic development agreement that city leaders negotiated with developer Lance Osborne--- outside of public view---called for a $600,000 outright grant and a $200,000 loan, all paid from public funds.
Osborne also applied for, and received, property tax abatement for the
project from the city.
The loan, which bore a 3% interest rate, was due to be paid in full on March 1st 2016.
As security, the city held a mortgage on the property.
The release will remove the city’s mortgage on the back portion of the property, which includes the Catalano’s building.
The loan, which bore a 3% interest rate, was due to be paid in full on March 1st 2016.
As security, the city held a mortgage on the property.
The release will remove the city’s mortgage on the back portion of the property, which includes the Catalano’s building.
Osborne’s prior claims that the property could not be successfully, commercially developed without a mega Get-Go gas station have clearly been proven incorrect.
Things are going so well, in fact, that Osborne has obtained new, more
favorable financing.
He plans to pay off the $200,000 loan, in full, in the very near future.
He plans to pay off the $200,000 loan, in full, in the very near future.
This means taxpayers will take an additional hit, with the loss of interest income from the loan.
Certainly success is a good thing.
It’s a relief that the prior owner was finally willing to sell the property.
It’s wonderful to see the Catalano’s site redeveloped.
And I’d much rather have an early payoff than a loan default.
But given the renovation project’s rapid success, I have to wonder:
It’s a relief that the prior owner was finally willing to sell the property.
It’s wonderful to see the Catalano’s site redeveloped.
And I’d much rather have an early payoff than a loan default.
But given the renovation project’s rapid success, I have to wonder:
Was the city’s privately negotiated, publicly financed economic development package too generous?
Should the loan figures and the grant figures been swapped, thereby providing more funds for future economic development investment elsewhere in the city?
You might ask:
What were city officials thinking, in granting such a generous deal?
Unfortunately, residents will never know.
Perhaps our elected leaders intended it that way.
What were city officials thinking, in granting such a generous deal?
Unfortunately, residents will never know.
Perhaps our elected leaders intended it that way.
After all, they didn’t share details of the negotiations themselves with the public, and the Economic Development Package legislation was handled in such a way that public discussion of the deal was rendered effectively irrelevant.
MORE GOOD NEWS
BRAINARD CROSSING MONUMENT SIGN WON’T BE VISIBLE FROM SPACE
The rejected mega GetGo development plan included removing the mature trees ringing the Catalano’s site (to expand the parking area) and installing 2 enormous monument signs.
At the July 28th P&Z meeting an Osborne representative confirmed that both of those items are now off the table.
The trees will stay, although some other vegetation will be removed and/or replaced as part of the site’s updated landscaping plan.
And, to date, only one monument sign will be installed.
No size variance was requested or required for the sign.
BRAINARD CROSSING MONUMENT SIGN WON’T BE VISIBLE FROM SPACE
The rejected mega GetGo development plan included removing the mature trees ringing the Catalano’s site (to expand the parking area) and installing 2 enormous monument signs.
At the July 28th P&Z meeting an Osborne representative confirmed that both of those items are now off the table.
The trees will stay, although some other vegetation will be removed and/or replaced as part of the site’s updated landscaping plan.
And, to date, only one monument sign will be installed.
No size variance was requested or required for the sign.
I'm very pleased to report that the monument sign is 20 square feet, meeting current zoning requirements.
Unlike the proposed GetGo signs, this one should fit right in with other
monument signs already installed in the area.
BROWN-FLYNN PARKING LOT EXPANSION
There were no variances requested or required for the planned driveway and parking lot expansion on the former Brown-Flynn property.
No public hearing was required after the owner reduced the size of the parking lot and the city dropped its request for an enlarged, non-conforming driveway.
The parking area will be 16 feet from the east property line (adjacent to a residential home).
Rather than a fence, the owner plans to use landscaping to form a natural buffer around the parking lot.
As to removal of mature trees, the owner’s representative told P&Z:
BROWN-FLYNN PARKING LOT EXPANSION
There were no variances requested or required for the planned driveway and parking lot expansion on the former Brown-Flynn property.
No public hearing was required after the owner reduced the size of the parking lot and the city dropped its request for an enlarged, non-conforming driveway.
The parking area will be 16 feet from the east property line (adjacent to a residential home).
Rather than a fence, the owner plans to use landscaping to form a natural buffer around the parking lot.
As to removal of mature trees, the owner’s representative told P&Z:
“We want to conserve as many trees as possible.
The trees are one of the reasons why we liked the property.”
While nearby neighbors are understandably concerned about the parking lot
expansion, it meets current zoning codes.
JULY LEGISLATIVE RUSH
The spin:
At the July 22nd Council meeting, President Cathy Murphy said:
JULY LEGISLATIVE RUSH
The spin:
At the July 22nd Council meeting, President Cathy Murphy said:
“Because it’s our last regular meeting before the August recess, there will be a suspension (of the legally required 3 readings) of all agenda items tonight.”
The facts:
At the time Murphy spoke a special Council meeting---at which official action can be taken---had already been scheduled for July 29th.
An additional special business meeting has been scheduled for August 12th.
The reality:
The rule requiring 3 readings of legislation was enacted to ensure that significant time is available for public discussion before Council takes action on city matters.
It fosters the democratic process, benefiting residents and public officials alike.
At the time Murphy spoke a special Council meeting---at which official action can be taken---had already been scheduled for July 29th.
An additional special business meeting has been scheduled for August 12th.
The reality:
The rule requiring 3 readings of legislation was enacted to ensure that significant time is available for public discussion before Council takes action on city matters.
It fosters the democratic process, benefiting residents and public officials alike.
Shortcutting the rule, by suspending readings, cuts off meaningful public discussion before it begins.
It cuts residents out of the legislative process, contrary to the intent of
the 3 readings law.
Not only were the readings suspended on July 22nd, every piece of legislation was also passed as an “emergency” measure.
The Ohio Constitution guarantees the right of all citizens to challenge, by petition, any piece of legislation that they disagree with.
It’s not an easy process to use, but the right to challenge legislation by petition exists as a fundamental democratic right in our state.
That right to petition, however, is significantly restricted when legislation is passed as an “emergency” measure.
Not only were the readings suspended on July 22nd, every piece of legislation was also passed as an “emergency” measure.
The Ohio Constitution guarantees the right of all citizens to challenge, by petition, any piece of legislation that they disagree with.
It’s not an easy process to use, but the right to challenge legislation by petition exists as a fundamental democratic right in our state.
That right to petition, however, is significantly restricted when legislation is passed as an “emergency” measure.
For that reason---by law at least---it takes a true emergency to designate legislation as an “emergency” measure.
Declaring the annual October Trick-or-Treating day does not involve any sort of legally recognizable emergency.
Yet last fall---a month early--- Council passed a Trick-or-Treating resolution as an “emergency” measure.
Suspending readings and passing legislation as “emergency” measures are supposed to be used rarely, in special circumstances only.
Yet last fall---a month early--- Council passed a Trick-or-Treating resolution as an “emergency” measure.
Suspending readings and passing legislation as “emergency” measures are supposed to be used rarely, in special circumstances only.
They should never be used for convenience sake, to steamroll legislation through, or to shortcut public discussion or the democratic process.
You’d think that Council President Cathy Murphy, a lawyer, would understand
all this.
Yet almost every piece of legislation she has put before Council has been dubbed an “emergency” measure, and Council’s use of suspended readings has accelerated over time.
It’s a troubling trend in my book.
Yet almost every piece of legislation she has put before Council has been dubbed an “emergency” measure, and Council’s use of suspended readings has accelerated over time.
It’s a troubling trend in my book.
Perhaps Murphy and the rest of Council will use part of their August break to do some soul-searching with regard to how Council conducts business.
I sure hope so.
