989 Western Avenue: Walgreens or Greenspace?
The Debate over Developing the L.T. Franklin House and Grounds
City Council Legislative Special Session - and Final Vote - October 13th new 10/15/04

The decision on rezoning 989 Western Avenue was postponed two days from the regular Legislative Session on October 11th because legal counsel for coucil was unavailable.

Law Director Toni Eddy recused herself from any involvement because her parents own the land at 989 Western Ave. and are seeking the zoning change. Ross County Prosecutor Scott Nusbaum was going to fill in for Eddy at Monday's meeting, but he had to withdraw shortly before the meeting. So at the end of the marathon council meeting on the 11th, council unanimously appropriated money for outside counsel. Wednesday proved to be the best day to postpone to since all council members were available only then.

So at 7:30 on the 13th, council reassembled for this single decision...which took an hour even at that. About 45 were in audience, including 3 media reporters. As far as I could tell, other than the reporters, all were opponents of the rezoning. There was no TV coverage.

The Chillicothe Gazetteagain had a next-day article on the 14th. Though the story ranked front page, it was trumped by the discussion of switching CHS's athletic league.

A panorama of the property as it is now...before any more changes. This is the first of a series of visual suggestions of what might happen with this property if it is rezoned.

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Councilman and Development Chairman Eric Rinehart began by noting a correction on the map given to council of the "3.2 acre" parcel, and pointed out that Jim Cutright is acting legal counsel.

Mr. Cutright answered questions from council, some apparently previously discussed:

Three council members have a conflict of interest. This does not indicate they are being unethical, just that should exclude themselves because possibility of unethical interests in the issue:

• Cindy Henderson is the owner of a pharmacy (The Health Shoppe on West Main Street) which would be in competition with a Walgreens Pharmacy.
• Tom Trutchel is the owner of a convenience store close by which would be in competition with a Walgreens because of its convenience store inventory.
• Mr. Cutright's interpretation of the law was that it was best for council to prohibit them from voting.

A third exclusion came as a surprise to most in attendance:

• Joe Herlihy is the fiduciary member of a 502(c)3 organization involved in this issue, the Chillicothe Conservancy - i.e., he's the treasurer - and Mr. Cutright's interpretation of the law was to recommend that Herlihy not vote.

If any were to vote and would be found to have a conflict of interest, they would be guilty of a misdemeanor.

Mr. Cutright continued answering: Is this "spot zoning?"

No, since it is contiguous to another C-4 zoned parcel.

Does a denial vote open council to a lawsuit?

Cutright: It depends on the facts presented:

• Cutright: Council members are not individually liable; council would have coporate liability
• If there were an impending lawsuit, Mr. Cutright suggested go into excutive (closed) session
• (Council President Shoulz felt excutive session was not warranted.)
• If the decision was just - if it was fair and impartial - there would be no problem.

Councilman and Development Chairman Eric Rinehart asked if some of the reasons for denying were valid: endangering a historic house, endangering a "pretty place"...

Cutright: It depends on how much you trust the planning commision (whose decision was forwarded to council): how much weight is given to the commision's reasoning, how much does commision's decision weigh on council's decision.

Council President Shoulz asked about preventing discussion of the issue by a party with a potential conflict of interest? - Specifically, Council Member Joe Herlihy?

Cutright: It would be reasonable to request that Herlihy not make a presentation that would influence the decision.

Council President Shoulz then asked to read ordinance...

...Which would have cut straight to the chase and gone right to the vote, without any further discussion...

Since this was sprung on him at last minute, Herlihy requested to let another council member run the presentation he was prepared to give. (It did not work during Monday's council session.)

Shoulz said it was ok.

...Surprisingly, without any further ado.

Council member Bart Henshaw agreed to read the presentation. After being asked, Shoulz agreed for Herlhy to run the projector.

Mr. Herlhy also handed in 423(?) signatures on the petition and a transcript of the presentation.

As the presentation was shown, I half imagined I was listening to a PBS special on an aspect of the unique and fragile character of Chillicothe:

• "Beautiful boulevard atmosphere"
• "Abundant greenspace..."
• "Enhance by high-quality residences..."
• Traditions being used as residential though zoned commercial
• homes are not currently threatened by commercial development
• "loss of this land to the most liberal of development"
• 'willing buyers for historic residences...'
• The Franklin houses are the only historic Tudor-styled houses in their original setting in Chillicothe
• "spot zoning" the parcel will only give credibility for the agrument that the area is going commercial
• Plea for more time
• "Quality of life"

I have most of the text of the "Sound Planning and the Enforcement of the Chillicothe Zoning Code" presentation in a sidebar article, courtesy of the Chillicothe Conservancy.

The light came back on, and the questions to counsel continued. [I was unable to type fast enough to cach all the Q & A.]

Rinehart: What about the statement that this rezoning will lead to development of the area?

Cutright: "If I give my two boys a cookie, I do not have to give them the whole box."

• If it's already substantially commercial, council's course is set and too late - no matter what the vote, the owners have right to continue
• don't think the vote tonight has anything to do with domino effect
• each individual case is unique - can say yes or no independently
• ...reverse condenmnation - taking of property rights...

Henshaw: If our hands are tied, then we have no choice to say no for the benefit of the community?

Cutright: no, liabilty...

Bart Q: if say yes now, then less able to say no in future?

Cutright: ...

Rinehart: ... This has an eerie similarity to another case... Can council justify protecting greenspace?

Cutright: can't speak to similarities - knows of cases in Cincinatti similar, but had only two days to prepare

• Supreme court case: will not listen to what city says, but what city does
• look at the nature of that area - either one way or another, and so preserve one way or continue another way

The council members (those who could vote) then began giving their final comments:

Patrick:

rezoning affects entire city because of safety

issue of free traffic fix

• if say no, saying no to known traffic fix

council must look at greater picture

At that moment, the thought was "We just lost. Pat Patrick was the lynchpin."

Bonner:

...

is this the lynchpin to make W.Ave a strip mall or not?

hasn't avoided vote because of lawsuit

don't have a crystal ball to see benefit or detriment

truly still contemplating

Henshaw:

for same reason that Patrick says, originally thought was a no-brainer: all good

don't have crytal ball

learned a lot about planning tonight

planning commission probably needs more training

...And in retrospect, that is where we won back the lead.

Rinehart:

decision to allow or deney zoning of 3.2 acres

must look to good of city

• are we saying the planning commission made bad decision by denying, or a good one by approving?
• 'The zoning was made in 1970 something...but I've memorized this: ordinance 100...that was passed 4 to 5 (?)'...

What? You know the ordinance number, but not the date?

• 35 year-old zoning plan
• need to get money to redo the plan
• saying no here would be putting a moratorium on rezoning: if deney, saying rezoning not good enough anywhere, even Bridge Stret

Now who is exaggerating?

• not a wetland: allegations are thrown out, statements being made: Corp of Engineers has not determined it to be a wetland
• destroying greenspace or threatening house is not reason to deney; Barlows promised to remain in house
• traffic issues being addrressed for good planned growth of Western Avenue

Schoulz:

in 20? years of coucil, not sure if any ordinance has taken longer - time to decide

Get used to it. This is actual progress.

Third reading of the ordinance to rezone 3.2 acres od 989 Western Avenue

And Council President Shoulz was going to skip all the above discussion?...

The vote, as asked for in alphabetical order:

• Bill Bonner, D-5th Ward...
     ...agonizing for several seconds...
       no.
• Bart Henshaw, D-At large, no.
• Jean Malone, D-4th Ward, yes.
• Pat Patrick, R-6th Ward, yes.
• Eric Rinehart, R-2nd Ward, yes.
• Jonathon Schobelock, R-3rd Ward, yes.

4 yes, 2 no: Failed for lack of 5 affirmatives!

At this point, I had to ask for someone to pinch me...

Now comes the bigger battle: To uphold this victory, to continue educating the powers-that-be, to guide the "Smart Growth" the Chillicothe needs...

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