Waiting for Developer Lance Osborne’s Next Move

Developer Lance Osborne has two options after Council rejected his initiative petition : step back and reassess or continue his campaign to gut Highland Heights’ zoning laws.

A recap

In late June, developer Lance Osborne began spearheading Giant Eagle’s effort to erect a mega “Get-Go” gas station, car wash and convenience store/café on the Catalano’s grocery store property.

One big problem: Highland Heights’ zoning laws don’t allow the Catalano’s property to be used in that fashion.

Osborne seemed to think that his involvement would engender immediate political support for the project. Council, however, balked at putting a Get-Go related rezoning issue on the November 2011 ballot.
Osborne, therefore, came up with his own zoning-related initiative petition and recruited a battalion of non-resident minions, who scoured the city to collect the minimum required number of valid voter signatures (290).

Where Things Stand Now

In a prior blog I described the changes that Osborne wants to make to the Highland Heights' zoning code and explained how Osborne's proposal would operate to effectively gut a significant portion of the city's current zoning code.  

But that’s not the only problem with Osborne's initiative petition.

Ohio courts tend to look favorably on initiative petitions---as long as they comply with applicable procedural and legal requirements and as long as the proposed issues are clear and not confusing to voters.
Osborne’s petition fails on these points as well. For example:

1. To promote clarity and transparency, Ohio law provides that all proposed legislation must be limited to and address a “single subject”.
   Osborne’s petition appears to run afoul of this rule, as it proposes changes to two different city ordinances: Ordinance 1131.04 and Ordinance 1131.05.
   The fact that 1131.04 and 1131.05 both pertain to zoning doesn’t mean they can be lumped together as a “single subject”. Their different numbers is just one indication that the ordinances are, in fact, separate and distinct laws, dealing with separate subjects.  Ordinance 1131.04, entitled “Use Regulations,” details the city’s different non-residential zoning classifications, while Ordinance 1131.05, entitled “Performance Standards,” set out various safety and other standards applicable to all non-residential parcels in the city.
   
   By lumping all of his proposed zoning law changes together in a single petition Osborne is clearly trying to present an “all or nothing” choice to voters----because he needs all of his proposed zoning changes to be approved in order to put a mega “Get-Go” on the Catalano’s property.
   Under the “single subject” rule, however, Highland Heights residents are entitled to vote on each of Osborne’s proposed changes separately, choosing for themselves whether they want to change one, both or neither ordinance.
   
   
2. Petitions are supposed to clearly and fully inform voters what the proposed new law entails by setting out the existing law, with strikethroughs of language to be dropped and bolded text indicating language to be added.
   
   Osborne’s petition showed only what his versions of Ordinances 1131.04 and 1131.05 would look like. He didn’t include the current ordinances or show how his proposed language differs from what is currently there.
   Bottom line, residents were kept in the dark, unable to determine the meaning or significance of Osborne’s proposed zoning law changes.
   
   
3.  Osborne’s petition does not contain any “ballot ready” text.
   
   Instead, it sets out---in three long pages---full of versions of what Ordinance 1131.04 and 1131.05 would look like, if Highland Heights residents approve his proposed changes. 
   Clearly the Board of Elections can’t put the entire 3 page petition on the ballot; there’s no room for it. Unfortunately, because of the way he structured it, Osborne’s petition doesn’t clearly indicate to the Board of Elections---or to anyone else---what particular language the petition-signers agreed could be put on the ballot.

Several sources told me that Law Director Tim Paluf sent a legal memorandum to Council last week, advising them that Osborne’s petition was defective for some of the reasons discussed above.  Following Paluf’s advice, Council unanimously rejected the petition last Tuesday.

The ball is now in Osborne’s court. 

Highland Heights Charter section 8.01 reads:

“If Council fails to pass such proposed ordinance…the petitioners through the Committee named on such petition may at the next regular meeting of Council request in writing that it be submitted to a vote of the electors. Thereupon, Council shall provide for submitting the petitioned ordinance… to the electors at the next general or regular Municipal election occurring more than ninety (90) days after the filing of such petition..”

Even if Osborne’s petitioner committee makes such a request at the regular Council meeting this week, that might not be the end of it.  Law Director Tim Paluf told Council last Tuesday that he may

“determine that the petition is not proper to go to the Board of Elections to be voted on… I’m still determining what will happen, once action is taken tonight.”

Even if developer Lance Osborne exercises his rights under Charter section 8.01 and forces Council to put his initiative issue on the ballot, it is unlikely that the Board of Election will approve submitting his proposed zoning law changes to voters as an “all or nothing” package. It is equally unlikely that any vote will be held this November because less than 90 days remain before the November 2011 election and the petition has not yet been filed with the Board of Elections.

It will be interesting to see what Osborne decides to do tomorrow---press ahead or take a step back and reassess his approach. 

He may have the right to steamroll his petition to get it on the ballot, but if Osborne does that, he’ll be going it alone, without any support from Council.

Summer Wrap-up

Planning & Zoning Issues and Election Shenanigans fill the void while Council finishes up its August recess.

Change of Leadership: Planning & Zoning Commission (P&Z)

 Although Council recessed for the entire month of August, P&Z did not.
One item listed on their August 22^nd agenda particularly piqued my interest:  “Election of P&Z Chair”.

Since P&Z usually elects a Chair in January, that agenda item was anything but business as usual.

  

Councilman Bob Mastrangelo has occupied the P&Z Chair for 15 years. He continued in that role after he was elected to Council (and appointed as Council’s rep to P&Z) two years ago.
At the August 22^nd meeting Mastrangelo disclosed that he had decided to give up his role as P&Z Chair. He explained that his decision,

 ”has nothing to do with this board, it has to do with the perception of people on council with me espousing certain positions. “

One of the “positions” that recently brought Mastrangelo into conflict with his fellow Council members was P&Z’s support of developer Lance Osborne’s request to change the city’s zoning code, to allow Giant Eagle to put a mega “Get-Go” gas station, car wash and convenience store/café on the Catalano’s grocery store property.

To give him credit, Mastrangelo also pointed out that all of the Council appointments would be up for grabs once a new Council was seated in January; someone else might be appointed as Council’s rep to P&Z the next  time around. With that possibility in mind Mastrangelo said, “I’d like to give someone else a chance to get experience” as P&Z Chair.

Vince Adamus, an economic development professional, was quickly (and unanimously) elected to replace Mastrangelo as P&Z Chair.

While the P&Z members were prepared for Mastrangelo’s announcement, they clearly weren’t happy about it. They blamed Council for Mastrangelo’s resignation. They seemed to believe that Council resented Mastrangelo’s “leadership” on zoning issues.

Adamus said, ”The issue is not here, it is city Council.”

Speaking for the record, P&Z member Bill Urban declared,

“The city won’t be as well served by not having you as chair. It is disappointing that, for whatever political reasons, you have to take a step back.”

Mastrangelo did his best to reassure his peers.

“I’ll still be on (P&Z)…It will be easier if someone else is doing the (chair) job. I’ll only be reporting to Council instead of leading P&Z. ..You’re still stuck with me.”

Although his P&Z peers may think otherwise, Mastrangelo’s decision was a good one. 

Mastrangelo is wearing a new hat these days: that of Councilman.  He sits on P&Z not in his own right but as Council’s rep.  There seemed to be some confusion on that point.

Giving up the Chair will make it much easier for Mastrangelo, residents, P&Z members and, most importantly, developers to keep his different roles straight.

OTHER P&Z TIDBITS

Getting an inch and taking 6 feet

One resident asked for, and received, a variance last spring, which allowed him to put a 6’ fence in his backyard. The resident was explicitly told at that time that the 6’ fencing had to stop at his home’s rear line and that all of the fencing next to his home, from the rear line forward,  could not exceed 3 feet---the maximum allowed under city zoning laws.

The resident was forced to return to P&Z on August 22^nd, after the city found out that he had installed a 6’ fence around his entire home.

The resident told P&Z that when he ordered supplies, he ordered only 6’ fence lengths, figuring that he would cut the fence down to 3’ where necessary after the fence was installed. He explained that after he installed a 6’ fence around his entire house,

 “We liked it and the neighbors liked it, so we decided to ask for variance to have the entire fence 6’.” 

During the discussion it came to light that the resident had not submitted an entirely accurate drawing of his home when he applied for his original variance; the drawing didn’t show a three-season sunroom that extended out the back. That omission was significant because the sunroom extended the home’s rear line further into the resident’s backyard. Bottom line, the resident had already received more of a variance than he would’ve received, had he accurately shown the rear line of his home last spring.

The resident wants an additional 37 foot variance, so he can keep the non-conforming 6’ fence that he intentionally and knowingly installed around his home---after being warned away from doing just that.

 The resident was told that pursuant to applicable zoning law he will have to show “hardship” to get the variance he seeks. And, as outgoing P&Z Chair Bob Mastrangelo explained,

         “the hardship can’t be because the fence is already up. “

Lobbying of P&Z members by developer Lance Osborne

P&Z member Don McFadden, a real estate attorney, revealed that developer Lance Osborne sent him a personal email after the last P&Z meeting, pitching changes to the proposed convenience store/café that Giant Eagle wants to put on the Catalano’s property.

 Osborne’s e-mail equates to something attorneys call “ex parte communication” with a decision-maker---something that is generally frowned upon in the legal world.

For McFadden (who stated that he did not respond to the communication), the Osborne e-mail raised

“the issue of whether it is appropriate for member of (P&Z) to receive emails outside of commission meetings. …I don’t know if you were concerned about this,” said McFadden,” I thought it was odd.  I just wondered whether it was appropriate and what we should do.”

Newly-elected P&Z chair, Vince Adamus replied:

“I’m not sure it’s an issue unless someone’s committing to something. As long as its informal discussion, I don’t know.”

I was disquieted by Adamus’s reaction.

 
I hate to think that, as P&Z Chair, he will encourage and/or condone backroom lobbying by developers and others seeking zoning approval from the city. 

Off-the-record discussion (that should be on the record).

I was astounded when P&Z members formally adjourned their August 22nd meeting and then launched into discussion of agenda items.

P&Z meetings are supposed to be public, on-the-record meetings--- all of the discussion about public business and agenda items is supposed to take place during the meeting---and be reflected in the meeting minutes.

Apparently that wasn’t the first time that P&Z members held an off-the-record meeting after adjourning their official meeting. Doing that violates both the intent and spirit of the public meeting laws.

P&Z has a lot of new members who have never served on a public commission before. It might be helpful, and certainly not inappropriate, for Law Director Tim Paluf to meet with them and bring them up to speed on applicable ethics and public meeting laws.

ELECTION SHENANIGANS

City employees sometimes feel the heat when their boss is facing a contested reelection battle. Perhaps that explains the recent behavior of the Highland Heights pool manager Sarah Tufts.

According to a recent email sent by Council President Scott Mills to Mayor Scott Coleman (and copied to Council), during a late July staff meeting Tufts told pool employees:

“’that they would lose their jobs if Scott Mills was elected mayor’ and that they should ‘tell their parents to vote for Mayor Coleman.’

While… being paid by the city, (Tufts) voiced support for your re-election in an obvious attempt to influence the outcome of the upcoming mayoral election…I personally investigated (the) matter and spoke to several… pool employees, who… confirmed the truth surrounding (the) inappropriate meeting. I also spoke with Sarah and she admitted that she discussed the election and suggested what would happen if I was elected, although she denied expressly telling the pool employees that they would lose their jobs…I then contacted Recreational Director David Ianiro…Ironically, instead of appropriately addressing this matter, Mr. Ianiro also (stated that) he understood he would lose his job if I was elected mayor.”

While it is easy to chalk the incident up to politics, Mills was right to take issue with Tuft’s alleged conduct.
State law frowns on public employees politicking on the job. Ohio Revised Code § 9.03(C)(2) bars

” (a) governing body of a political subdivision” from using public funds to compensate any employee …for time spent on any activity to influence the outcome of an election for the purpose of support(ing) …the election of a candidate for public office.”

Bottom line, city employees are supposed to spend their work hours focusing on doing their jobs---the jobs taxpayers are paying them to do. It is particularly inappropriate for supervisors to use scare tactics on their subordinates, in an attempt to round up votes for their public boss.

Isn’t that the type of behavior that led to the Cuyahoga County scandal?

OTHER POOL WOES

Highland Heights Pool Manager Sarah Tufts may have good cause to worry about retaining her job---for reasons that have nothing to do with politics.

At the July 26^th Council meeting, resident and regular pool user Paulette Hughes expressed her concern about an ongoing issue at the pool: the state of cleanliness (or lack thereof) of the women’s bathroom. Hughes told Council,

“The ladies’ bathroom at the pool is way below standard… I got so upset with the lack of cleaning that I took a scrub brush and Tilex with me and scrubbed one shower and bench. There is so much scum in the cinderblock it’s yellow….where the floor and ceiling meet, there is a dark brown scum line. No one has taken any care of the bathroom... Whoever the cleaning people are…if they think they are cleaning, it’s not correct. “

While Hughes was assured by Mayor Scott Coleman at the Council meeting that her concerns would be investigated and addressed, apparently they were not.  Hughes sent a followup email to the mayor and Council several weeks later, stating:

“Some of the rust has been removed from the two soap dispensers.  Some of the scum has been removed from the base of the bench and the floor in the middle of the bathroom.
What remains undone: scuff marks on the walls, mold/missing paint in at least two of the showers, soap scum in crevices in cinder block in shower areas, brown scum remains at union between walls and floor.  Two hooks still broken with internal sharp metal mounting brackets still exposed–one in a shower stall and one on the far wall in the bathroom, brownish smear still on wall above soap dispenser on right by sinks, yellowish stain on wall under soap dispenser to right of sink of left.  

I am quite disappointed. …I really don’t understand the failure of those responsible for solving these issues when the burned out and missing fluorescent bulbs in one of the bathroom ceiling lights were replaced within a matter of hours.”

As pool manager, Tufts is responsible for the entire operation of the city’s million dollar pool facility----including making sure that the bathrooms are kept clean and in good repair.  In that respect it appears her performance—to use Hughes’ words---has been “disappointing”.

Others might (less charitably) call it something else.

The August Pause

After holding a special meeting last week, Highland Heights Council adjourned for its annual August break, leaving some unfinished business on the table.
City Contracts

Given the current economy, you’d think that contractors would be beating down Highland Heights’ City Hall doors to submit bids for one of the many contracts that the city advertised in July. Or maybe not…

Not a single bid was submitted for the city’s 2011 sidewalk replacement project or for Recreation Director Dave Ianiro’s proposed Park Party Barn Pavillion. The city received a single bid for resurfacing the park roads and one over-estimate bid for a gazebo in the new municipal center greenspace.

Council decided to re-advertise three of the contracts more broadly (the park road contract excepted) by placing notices in both local weekly and daily newspapers. That did the trick--at least as far as the sidewalk project is concerned. Council accepted a bid for that project during its pre-recess special meeting.

A second round of bid openings for the other outstanding contracts is scheduled for later this month.


Refinancing City Bonds

Late in July Mayor Scott Coleman informed Council that the city could save approximately $500,000 over 12 years by “calling” or redeeming some outstanding city bonds and replacing them with a single, lower interest rate bond issue.

The old bonds (due to be fully paid off in 2023) financed the building of the new pool and paid for other major infrastructure work throughout the city.

The lower interest rate means that it will cost the city less to pay off its old debt.

While refinancing the bonds is a good idea---and it’s good that Mayor Coleman is pursuing that plan---I’m disappointed in his lack of leadership. The mayor could have leveraged the bonds swap as a means to generate new revenue to pay for some of the city’s current, significant infrastructure needs.

Given the lower interest rates, for the same payments it’s making now on the old bonds, the city could have obtained additional money to finance necessary things like major street repairs and replacing some of the city’s aging water lines.

Service Director Thom Evans warned the mayor and Council several years ago that the city’s major water artery---the Highland Road water main---is failing and needs to be replaced. Two weeks ago, a major water line break in a different part of the city caused significant damage to a city street.

Although the clock is ticking---loudly---on the city’s aging, underground water mains, Mayor Coleman has turned a deaf ear to the issue. He has not set aside any money or even begun planning how to get that vital, but expensive, infastructure work done.

Maybe his mind has been focused elsewhere---like Dave Ianiro’s Party Park Barn Pavillion. Certainly that’s what Mayor Coleman’s 2011 budget seems to indicate, as demonstrated by the $200,000 he set aside to pay for that item this year.

Who needs water, and who cares about deteriorating streets, as long as you can party in the park---right?

The mayor’s plan to swap the city’s old, high interest bonds for a lower interest rate bond is a no-brainer. It’s a move obvious to any resident who has refinanced a mortgage in the last couple of years.

Taking the no-brainer route, however, does not necessarily translate into good financial leadership. Taking the no-brainer route is not the same thing as doing what is right and necessary to get things done in the city.

Taking the no-brainer path is, however, a better political move for someone trying to keep his seat in a contested mayor’s race.

After all, if you were running for mayor, wouldn’t you rather brag about saving the city half a million dollars? Wouldn’t that be easier than explaining to residents why you decided to take on new debt---even if doing that benefited the city more in the long run?

Are We Get-Go?

Lance Osborne recently unleashed a battalion of out-of-towners to collect signatures for his Get-Go related initiative petition. One signature collector admitted to a resident that he lived in Sandusky. Two other collectors told me they came here from the Akron area. They also claimed that they were “volunteers” for a group that supported “small business.”

If you buy that, I’ve got a bridge I can sell you.

Although Osborne told Council that he was simply trying to “update” the “local business” rules, his initiative would effectively gut the city’s zoning code. Not only would it enable Giant Eagle to put a mega Get-Go (and alcohol-selling convenience store/café) on the Catalano’s property, it would allow gas stations and car washes to be put on any business-zoned property in the city---in places they aren’t currently allowed.

Osborne rushed to bring his initiative petition to City Hall before Council went into recess, hoping to get his proposed new zoning laws on the November ballot.

Since Highland Heights is a Charter city, our charter controls what happens next. According to Charter section 8.01, Council has 40 days after an initiative petition is submitted to accept, reject or amend it. That leaves plenty of time for Council to act on the Osborne petition after it returns from its August recess.

If Council doesn’t approve the petition, Osborne can either rethink his approach or press ahead---essentially forcing Council to put his proposed legislation before the voters.

According to the Charter, initiative issues go on the ballot of the next general or regular municipal election held more than 90 days after Council files the issue with the Cuyahoga County Board of Elections.

Depending on whether Council takes the full 40 days provided by in the Charter, it could be mid-September before Council files Osborne’s initiative petition downtown---well after the Board of Election’s August 10th deadline for putting local issues put on the November 2011 ballot.


And the Race Is On

There will be just three contested municipal races this year: the mayor’s race and races for Council-at-Large and the Ward 4 Council seat. Councilwoman Cathy Murphy and Councilmen Leo Lombardo or Bob Mastrangelo are unopposed this time around.

The mayor’s race is no surprise. Council President Scott Mills threw his hat into that ring several months ago.

A surprise entry in the Council-at-Large race is Attorney Ken Rapport-Messinger. He joins Mayfield Heights Service Department employee Chuck Brunello and incumbent Councilmen Ed Hargate and Frank Legan, all of whom are vying for three available at-large seats.

I wasn’t too surprised to see Ted Anderson’s name in the Ward 4 race. Anderson--who was soundly defeated by Councilwoman (and assistant County Prosecutor) Lisa Stickan two years ago—pledged in a November 26, 2009 Sun Messenger story that he would run again in 2011.

Two years ago Anderson was nothing but sour grapes about his loss. He seemed particularly bugged that Stickan, an active Republican, received support from Ward 4 Republican voters. A declared “independent,” Anderson claimed, “This shouldn’t be a Republican-Democrat race. There should be one side.” Ironically as the Sun Messenger pointed out, Anderson was himself actively supported in the 2009 Ward 4 race by two prominent Republicans---Councilman Frank Legan and former Councilman Jamie Pilla.

In 2007, Anderson walked in, unopposed, to the Ward 4 council seat. He was able to do that after his predecessor, Jim Austin, decided to file petitions in the city’s at-large race, rather than seeking reelection in the ward. (After the election, Austin was appointed to a newly created city position, that of acting Building Commissioner.)

Anderson seemed to expect that the Ward 4 seat would be handed to him again in 2009---especially after former Councilwoman Ann D’Amico pulled out of the race at the very last minute. (D’Amico was later appointed, post-election, to a paid position on the city’s Planning & Zoning Commission).

Anderson’s bitter and accusatory comments indicate just how flummoxed he was in 2009 when he found that, instead of another cakewalk, he had to compete against Stickan in a contested political race for the Ward 4 council seat.

“We should all be here for the same reason” Anderson was quoted as saying, which for him meant “…further(ing) the process of having the former pool house at the Highland Heights park made into a (day camp) facility …(and a) facility for residents’ parties and events.”

As a former Park & Recreation Committee member, it’s not at all surprising that building a new Park Party Pavilion would be at the top of Anderson’s priority list for the city.

Ward 4 voters will have another opportunity in November to tell Anderson just what they think of his priority list.