Planning & Zoning Commission: Loose Cannons on Deck?

Last Monday, the Highland Heights Planning & Zoning Commission approved a "leasing" sign for a non-existent retail development. …What’s up with that?

SIGNS IN HIGHLAND HEIGHTS: THE BACKSTORY

Last year Highland Heights updated its sign ordinances. They are pretty detailed and impose different requirements depending on the type of sign and type of property involved. Only political signs are exempt, for First Amendment reasons.

Anyone wanting to put up a non-political sign in the city must: 1) go the building department; 2) submit an application; 3) pay a fee; and 4) obtain a permit from the building commissioner. The commissioner is the only one authorized to approve sign permit applications and issue sign permits. 

According to Ordinance 1145.02(27), all sign permit applications must be signed by the owner of the property where the sign is to be erected. There is one exception for "tenants"; they can apply for a sign as long as they provide "written consent of the owner of the building, structure or land to which or on which the sign is to be erected" (1145.13(6)). 

The Planning & Zoning Commission (P&Z) usually isn’t involved in the sign permitting process, and when it is involved it has a very limited role.

P&Z’s involvement isn’t triggered until after a sign permit application is filed; the application determines whether or not P&Z approval is necessary for the issuance of a sign permit. For example, if a property owner wants to install both free-standing and attached signs on his or her property, Ordinance 1145.13(b) states that P&Z must determine,

"the necessity for (the) free-standing sign to the conduct of the business, profession or commercial activity on the site in deference to or in addition to an attached sign prior to issuance of a permit."

Likewise, P&Z approval is required if the requested sign will violate the city’s Zoning and Building Codes. The standard for granting a variance is a pretty high one. P&Z can only grant variances "in instances of unnecessary hardship" (Ordinance 1113.01), and 1113.04 requires at least 10 day’s prior notice and a public hearing before P&Z can act on variance requests.

Under the city’s statutory scheme, P&Z has no business getting involved with a sign request unless and until a properly authorized sign application has been filed with the city, and then its role is limited to voting up or down on a dual sign or sign-related variance requests. 

At least, that’s how it’s supposed to work.

THE CONTROVERSY

P&Z’s Feb. 13 agenda contained this item:

1. The Shoppes at Brainard Crossing, 5612 Wilson Mills
    Review Request for Variance for a Proposed Construction Sign; Schedule Public Hearing

The agenda didn’t disclose who made the request (developer Lance Osborne) or specifically identify that pertained to the Catalano’s property.  (It turns out that "The Shoppes at Brainard Crossing" is what Osborne calls his proposed mega Get-Go development – which is kind of funny, given that the first sign that everyone will see will be a huge GetGo sign, should the development come to pass.)

Anyone looking at the P&Z agenda would (quite properly) have figured that they would have a chance to weigh in on Osborne’s sign request at an upcoming public hearing.

They might have thought that, but they would have been wrong.

Councilman Bob Mastrangelo – council’s representative on P&Z – reported at the Feb. 14 council meeting that developer Lance Osborne decided to drop his variance request. Although that should have ended P&Z’s involvement, Mastrangelo said that P&Z nevertheless went ahead, took a vote and:

"…approved a sign for the Shoppes at Brainard. It’s not a construction sign. P&Z approved a (4 foot by 8 foot) leasing sign."

Mastrangelo indicated that the sign’s purpose is really political: it’s Osborne's way of communicating with residents with regard to the as-yet undetermined GetGo related zoning issue that will appear on the November 2012 ballot.

That certainly makes more sense than calling it a "leasing sign," especially given that there are no developed retail spaces actually available for rent on the Catalano’s property.

P&Z: LOOSE CANNON ON DECK

After the Council meeting, I asked Building Commissioner Dale Grabfelder for a copy of Osborne’s sign permit application.  Grabfelder responded on Feb. 16:

"I do not as of this time have a permit application for the sign. Mr. Osborne has not submitted plans yet for permits."

Wow. So that means P&Z acted like a loose cannon on deck, with developer Lance Osborne at the helm, steering the boat.

P&Z didn’t have the authority to consider Osborne’s sign request because: 1) Osborne doesn’t own the Catalano’s property; and 2) even if he did, he hadn’t submitted a sign permit application to the Building Commissioner, which is what kicks off the permitting process.  In addition, once Osborne dropped his variance request, any excuse for P&Z involvement ended.

Yet P&Z went ahead and "approved" Osborne’s purported "leasing" sign anyway.

This isn’t the first time Osborne has attempted to bypass city ordinances in connection with his mega GetGo development plan. We saw that kind of behavior before – repeatedly – in connection with his attempt to rush a GetGo zoning related issue onto the ballot.

President of Council, Cathy Murphy, was not pleased.

"I do not understand why the sign was approved. It doesn’t say anything about the GetGo .…without a GetGo there are no 'Shoppes at Brainard.' The two are together. You are telling residents only half the story. …It’s premature to have a lease sign up. There won’t be any leasing if there is no GetGo."

Councilman Ed Hargate agreed,

"(P&Z) shouldn’t approve anything until there has been preliminary approval of site development plans. That hasn’t been the case."

Murphy is right. The "leasing" sign that P&Z approved is deceptive and misleading.

Osborne has repeatedly said that his interest in developing the Catalano’s property is contingent on a mega GetGo gas station and convenience store/café being installed there and that his development deal with Giant Eagle will expire before November – before a GetGo-related zoning issue is put on the ballot.

And, of course, none of the retail space that Osborne wants to advertise even exists – and it may never exist if residents vote no on the GetGo zoning issue.

Fortunately for residents and the city, since P&Z doesn’t have the authority to approve sign permits, their approval of Osborne’s proposed leasing sign has no legal effect. 

Osborne can’t erect a sign unless he first obtains a sign permit, and he can’t apply for a sign permit because he doesn’t own Catalano’s.

It’s highly unlikely that the city’s Building Commissioner would approve Osborne’s sign in any case, since it is so clearly misleading to the public.

RESIDENTS SPEAK OUT IN OPPOSITION TO FRAC DRILLING IN THE PARK

Quite a few residents attended the Feb. 14 Council meeting, in response to agenda item #4, a resolution (once again) authorizing Mayor Scott Coleman to sign a lease allowing Bass Energy to drill frac gas wells in the Community Park.

In 2008, 3,607 residents voted to approve amending our city Charter to protect the city’s parkland from,

"…commercial exploitation of the parkland’s natural resources, including gas or oil wells, logging and mining.."

3,607 residents….that’s almost 33 percent more residents than voted to re-elect the mayor last November.

I expressed my anger at seeing item #4 on the agenda and then discussed something else: Council’s failure to exercise due diligence with regard to the new proposed drilling lease.

The first lease that Mayor Scott Coleman signed in 2007 was a Bass-supplied lease. It was written to protect Bass’s rights and interests, not the city’s.

Council is proposing to have the mayor sign essentially the same Bass-supplied lease.

Council has not consulted with a mineral rights or drilling lease expert, nor have they added vital provisions to protect the city, including provisions addressing: default remedies, stream and ground water monitoring, the use of evaporators, the repurposing of the wells to store toxic drilling waste, the millions of gallons of water that Bass will need to frac two gas wells, and royalties payments for other marketable minerals and gases, besides gas and oil, that Bass might obtain from the wells.

As I said, ending my remarks:

Before you rush forward with a new lease, do some due diligence.  Take the time to consult with a drilling lease expert.

You owe it to Highland Heights residents to do that.

It’s the least you can do, since apparently you won’t respect their wishes to keep gas wells out of the park.

It’s the least you can do before you continue down this very foolish and very dangerous path.