An Open Letter to Mayor DeGraw and Council Members Kearns, Smith, and Panzera About Issue 31

Another resident, Bob Claussen, carefully laid out the wealth of misinformation being circulated by the City Attorney in her “FAQ” sheet that appears on the opposition’s web site and was also circulated to residents through various channels. I am disappointed your public statements about Issue 31 incorporate much of the same misleading information and misstatements as the City Attorney’s “FAQ” sheet.

The Ohio Secretary of State and Board of Elections determined that residents supporting Issue 31 were not required by law to submit or obtain the City’s approval before seeking to place Issue 31 on the Ballot and that the City’s position on this point was “confused.” Yet you all continue to make this same, defeated argument in opposing Issue 31. Residents should know supporters of Issue 31 (also your constituents) are not the scofflaws you attempt to portray us as and that we followed the law to the letter.

You state Issue 31 would result in a “no build zone,” but fail to point out to residents that the current Ordinance also establishes a similar “no build zone.” You state that Issue 31 will “contract” the area where development is prohibited, when that is not accurate as reflected in the map above. Take note: the opposition isn’t against Issue 31 because it “contracts” or decreases the protected area – the opposition is against Issue 31 because it expands the area protected from development.

Each of you states Issue 31 presents “taking” issues for the City, which would require the City to pay compensation. Have any of you thought that this advice is as misguided as that given to protest the placement of Issue 31 on the Ballot?

As lawyers, Council Members Smith and Kearns, we know case law from other jurisdictions is sometimes helpful in deciding issues in our own state because the law that applies to determine the constitutionality of local and state ordinances across the country is largely the same. In a North Carolina case, a property owner, who owned property in a “scenic corridor” created by local ordinance, claimed the ordinance constituted a “taking” of his property rights because he could not develop his property as he wanted – similar argument to that being made with respect to Issue 31 here. He also claimed he was entitled to compensation from the city for the alleged “taking.” The North Carolina Court of Appeals determined there was no “taking,” the scenic corridor ordinance was constitutional because it preserved the character of the area, and the property owner wasn’t entitled to any compensation because establishment of the scenic corridor and development restrictions took no property rights from him. Nothing prohibited the property owner from using his land for its intended purpose, so no “taking” occurred. This case is JWL Investments, Inc. v. Guilford County Bd. of Adjustment, 133 N.C.App. 426, 515 S.E.2d 715 (1999). There are more in support from across the country.

Though you state Issue 31 is a “taking,” you are supportive of the current Ordinance. If Issue 31 is unconstitutional as you claim, how does the current Ordinance, which is substantially similar to Issue 31, survive a constitutional challenge? None of you address this inconsistency in your positions.

You state Issue 31 might cost the City “millions” in damages, but fail to provide how this number was calculated. Without the detail, it is a mere scare tactic even if it comes from City leaders.

Council Member Smith stated in his letter that he and I had “extensive” discussions about legislation to protect the west end of Goodale Boulevard from overdevelopment. I spoke to Council Member Smith about this issue for about 10 minutes when he was campaigning for his seat. We then met over coffee and spoke again on this topic for about 10 minutes. Council Member Smith, who is also a lawyer, expressed his support for an initiative to prevent development any closer to Goodale Boulevard than existing homes, without reservation. The only other time I spoke with Council Member Smith about potential legislation was during a conversation, which also included Mayor DeGraw and Council Member Kearns, again for about 10 minutes. They suggested I call the City Attorney to discuss potential alternative legislation. When I did, she was dismissive.

Council Member Smith, these conversations were not “extensive” by anyone’s standards. I am disappointed you would give residents the idea that the City “extensively” considered or discussed legislation to preserve and protect the green along Goodale Boulevard, when that simply did not happen.

Now that Issue 31 is up for a vote, you express your willingness to work with residents to come up with a solution to address the potential for overdevelopment along the west end of Goodale Boulevard. These offers now seem disingenuous and are eerily similar to statements made when you were campaigning that if elected you would listen to the concerns of residents and act on them.

Council Member Panzera, I agree there is misinformation being spread about Issue 31, but the supporters of Issue 31 are not spreading it. You mentioned an unidentified person spreading information about the possibility of apartment buildings along the West end of Goodale Boulevard. The supporters of Issue 31 have been concerned only with development of multiple homes of what are single-family home sites. However, your comment got me thinking.

Did anyone think Summit Chase would have been constructed on what was the site of the former “Urlin Mansion” (at Urlin and Goodale) when the Mansion was razed in 1950?
What about the Butler Sheldon residence at 1599 Roxbury Road? You can’t see it from the street, because the Roxbury Arms Apartments were constructed all around the residence, which is sandwiched in the middle of the apartments. Then there’s the site of the Prescott-Bush Home and the Casparis Residence. Though no one supporting Issue 31 said that overdevelopment along the west end of Goodale Boulevard might include apartments or even condominiums, is it really so far fetched that such development might occur, Council Member Panzera?

As residents, we count on you to make informed and well-reasoned decisions and to enforce the laws as they should be enforced so that we as residents don’t have to take action when our City government fails us. We also count on you to convey unbiased, factual information to residents so we can make informed decisions based on facts, not on speculation, scare tactics, or unsubstantiated arguments.

The mission with Issue 31 is to do something you failed to do – to enact legislation that would strengthen the protections for the green areas along Goodale Boulevard and to keep the green along Goodale Boulevard green. I hope every resident will separate the wheat from the chaff when deciding how to vote tomorrow on Issue 31 and will recognize misinformation is misinformation, whether it’s coming from the opposition or from the City.

/s/ Jody M. Oster, One of the Supporters of Issue 31

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