MORE GETGO MONKEY BUSINESS?

Tim Paluf has been Highland Heights’ law director for almost two decades.
During that time he’s drafted thousands of ordinances and more than a few ballot issues---he drafted 3 Charter ballot issues just last year.
Needless to say, Paluf knows what he’s doing when it comes to putting pen to paper.

Which makes last week’s special council meeting puzzling and a bit disturbing.

After adjourning for its traditional month-long August recess, Council abruptly reconvened on Wednesday August 8^th.  
There was nothing to alert residents to the meeting; it just suddenly appeared on the city’s online calendar.

There was only one piece of business on Council’s agenda that night: enactment of a new GetGo-related zoning ordinance.

The Cuyahoga County Board of Elections (BOE)---which is the decision-maker when it comes to what actually appears on the ballot---objected to the confusing, gobbly-gook ballot language* that Paluf included in Ordinance 14-2012, the original GetGo zoning ordinance that Council enacted on July 24th.

* If you’re wondering why I call it “confusing, gobbly-gook” look at the bottom of my last blog posting. I’ve replicated the GetGo zoning ballot issue language that Paluf drafted there.  Read it and judge for yourself just how clear and intelligible it is.

As it is wont to do, the BOE whipped out its editing pencil last week, intent on coming up with a clearer, more concise and more easily understood ballot issue.

During that process, the BOE determined that the zoning issue couldn’t include any references to either GetGo or the GetGo development agreement because there was no legal basis for including them.

There was no legal basis because Paluf hadn’t included any references to either GetGo or the development agreement in the authorizing language of Ordinance 14-2012.

Paluf admitted as much during the August 8^th meeting. He said:

After talking to the (BOE) ballot language expert and his boss, they said the state would not allow a reference to that agreement (the GetGo development agreement ) without its being referenced in the ordinance…They were going to take that language out. …In order to refer to that in the actual question on the ballot, we have to incorporate it into …(the) legislation.

Wow.  What’s going on here? Who knows.

There are actually going to be two zoning issues on the November ballot, both of which pertain to Brainard Road property.
One of those issues involves rezoning property from Residential to a Parking District and the other involves rezoning property from Local Business to Motor Service.

Thanks to Paluf---and the way he drafted Ordinance 14-2012---Highland Heights voters weren’t going to be told, when they sat down to vote, that the Motor Service rezoning issue pertained to developer Lance Osborne’s proposed mega GetGo development project.

Council convened the special meeting on August 8th---the last day for getting local issues on the November ballot---in an attempt to remedy that situation.

It enacted a new GetGo-related zoning ordinance, Ordinance 23-2012.  
New language was added to state that the rezoning of the front part of the Catalano’s property from Local Business to Motor Service:

“….is subject to Resolution 29-2012 authorizing the City of Highland Heights to enter into a development agreement with Brainard Crossing Holdings, LLC….”

That’s some improvement. 

 
Unfortunately, the authorizing language in the replacement ordinance still doesn’t mention either “GetGo” by name, nor does it refer to the development agreement by its title: “Brainard Crossing GetGo Development Agreement.”

 And despite the BOE’s prior ruling, Paluf included the same confusing gobbly-gook ballot language that appeared in the original ordinance.

Residents can only hope that the new language in the hurriedly adopted Ordinance 23-2012 (which Paluf also drafted) is sufficient to allow the BOE to include some explicit reference to GetGo in the GetGo-related zoning issue that appears on the November ballot.

If not they will be kept in the dark on election day, which might be quite a lucky break for developer Lance Osborne.

The first page of the Original GetGo-related zoning ordinance that Council enacted in July

The first page of the new GetGo-related ordinance that Council enacted, with  language added to Section 1

CITY DEVELOPMENT NEWS

Developer Lance Osborne’s proposed mega GetGo development isn’t the only economic development news in the City of Highland Heights.

NEW GODDARD SCHOOLS FACILITY OPENING NEXT YEAR

The national economic downturn resulted in an abrupt halt to construction of a planned daycare facility on Miner Road a few years ago. Since then, the property has been sitting empty.

That’s about to change.

The Goddard Schools---a national for-profit chain of academic-based daycare/pre-schools---has just received site plan approval for a new facility on that site. The projected construction cost: $2 million.

Company representatives said that they look quite carefully before selecting new locations----a clear indication that they think Highland Heights will be a good place to do business.

At a July 9^th public hearing, several Miner Road residents offered these comments:

There is lots of traffic on Miner Road. The street is narrow. This will bring a lot of people in. It’s already hard to make left hand turns. Safety, I’m concerned about that.

What kind of revenue will this bring to the city? … I’m concerned about traffic in front of our houses. Miner Road needs to be widened.  Will this bring more pedophiles into the neighborhood.?

Planning & Zoning Commission (P&Z) Chairman Vince Adamus explained:

Potential revenue is not relevant to the planning commission. Our duty is to look at the site plan. We are not here to judge revenue per se. They (the Goddard Schools) are not a nonprofit agency. They will pay property tax. They will have 25 staff members, so there will be income tax. Our job is to judge the type of use and decide: Does it conform to our zoning? This is a private property transaction. …

This is a facility that will be staffed 100% of the time. The children will be led into the building by their parents. It will be fenced where the kids play…

It’s conceivable to put a 30,000 sq foot office building there…Conceivably you could have 120 employees working there.  That would mean more trips in that scenario.

The Goddard Schools franchise is scheduled to open in the summer of 2013. It. will serve approximately 140 children between the ages of 6 weeks and 6 years and employ between 20 and 25 (full and part-time) staff members.

COUNCIL ACTS TO PUT MEGA GET-GO ZONING ISSUE ON THE BALLOT

Council passed required mega GetGo-related legislation before adjourning for its annual August recess.

At its July 24^th meeting, Council adopted a resolution authorizing the mayor to sign a development agreement with developer Lance Osborne.
It also enacted Ordinance 14-2012, which rezones the front part of the Catalano’s property to a Motor Service District—a necessary precursor to installing a mega GetGo gas station.
Residents will be asked to approve—or reject—that Ordinance in November.

For once, the Council vote was not unanimous.

Ward 4 Councilmember Lisa Stickan voted against both the zoning Ordinance and the development agreement Resolution.

Council-at-Large Representative Ed Hargate voted for the Ordinance but against the Resolution.

Council President Cathy Murphy explained her support for both pieces of GetGo legislation, saying:

I want to be clear that it is Giant Eagle and the developer, Mr. Osborne, proposing the GetGo, not Council. A “Yes” vote (by Council) is not an overt or tacit endorsement of the project. It is an indication that we’ve done our due diligence. We have put together the best proposal and ballot language possible.

Mayor Scott Coleman went farther, expressing his support for the GetGo project: 

We have come a long way with this project. We have addressed most of residents’ concerns. Residents have the right to speak. I will be signing it (the development agreement).

Councilwoman Lisa Stickan disagreed that residents’ concerns about the proposed mega GetGo project had been fully and adequately addressed. She said:

Ultimately the decision about the project will rest with voters in the city. Once they speak I will honor that result. As the representative of Ward 4, however, at this time there are too many concerns within the ward for me to vote yes …. I feel I need to honor their (her Ward 4 constituents’) wishes.

As is typical for him, Councilman Ed Hargate declined to state on the record, during the Council meeting, why he voted against the development agreement. 

Patch.com reported Hargate as saying, after the meeting, that he believed  that a planning expert should have participated in the process and that he questioned how much of an economic benefit the mega GetGo development---“a gas station bringing minimum wage jobs”---would really provide to the city.

http://mayfield-hillcrest.patch.com/articles/getgo-put-on-november-ballot-with-some-reservations

DETAILS OF THE GETGO DEVELOPMENT AGREEMENT: THE ZONING ISSUE

There’s alot in the development agreement---much too much to cover in a single blog posting.
So let’s start at the beginning.

This is the text of the zoning issue that residents will see on the November ballot:

Shall Ordinance No. 14-2012, which revises the Zone Map of the City of Highland Heights, Ohio by rezoning Permanent parcel No. 822-27-021, comprising approximately 1.643 acres of land at the corner of Wilson Mills and Brainard Roads as the same is more fully described in Ordinance No. 14-2012 and subject to the Brainard Crossing GetGo Develelopment Agreement entered into between the City, Osborne Capital Group, LLC and Brainard Crossing Holdings, LLC, from Local Business District (L)B) to Motor Service District (M-s) be enacted into law?

Say what?

Let me bottom line it for you.
Here’s all you need to know:

A YES vote is a vote FOR Osborne’s mega GetGo development.

A NO vote is a vote AGAINST it.

QUICK FOLLOWUP: DOES THE NO-ALCOHOL SALE RESTRICTION APPLY TO OTHER GAS STATIONS IN THE CITY?

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.