Waiting for Developer Lance Osborne’s Next Move

A Recap

In late June, developer Lance Osborne began spearheading Giant Eagle’s effort to erect a mega GetGo 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 GetGo 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/or address only a single subject.
   
   Osborne’s petition appears to run afoul of this rule, as it proposes changes 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 GetGo 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 – 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 three-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. Paluf told Council last Tuesday that he "is determining 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 forces Council to put his initiative issue on the ballot, it is unlikely that the Board of Election would 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 yet to be filed with the Board of Elections.

It will be interesting to see what Osborne decides to do today – 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 chooses that route he’ll clearly be going it alone, without any support from Council.