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

Osborne reappeared at the Feb. 21 Committee of the Whole meeting (COW) with what Council President Cathy Murphy called a “shell of a document.”

Dated Feb. 16, 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 GetGo development, including the site, landscaping, signage and GetGo 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 GetGo 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 citywide and impacted ward approval before a piece of property can be rezoned. Only citywide 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 27, 2011.  He turned his petition into the city on Aug. 2.

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 Aug. 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 GetGo 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. “

You can read the minutes from that meeting online.

P&Z discussed the “Get-Go” zoning issue a month later, during a Jan. 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 citywide and in Ward 4 where the property is located. 

(Then 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.”

At a Jan. 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…”

Osborne and GE representatives appeared at a July 11 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.”

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. “

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

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

So there you have it.

On July 12 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 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?