good evening and welcome to bexley city
hall
i would like to remind everyone here
tonight that we are here for the good of
bexley
with that being said i'm going to let mr
official our city attorney take roll
call okay uh ms robinson here mr
klingler here mr marcum here mrs bible
here mr sheriff here miss sod here ms
lamke here
can we all rise for the pledge of
allegiance
of the united states of america and to
the republic for which it stands
one nation under god indivisible with
liberty and justice for all
so we are here tonight december 15th
2021 at 6 pm to hear oral arguments by
the parties on the notice of appeal of
the decision of the board of bexley
zoning and planning concerning a
proposed three-story multi-family
residential structure at 2300 east
livingston avenue council had previously
referred the appeal to franklin county
court of common pleas in order to avoid
any potential claims of conflict of
interest
in a recent decision at the franklin
county common pleas court a judge
remanded the case back to council to
hear the appeal which brings us here
tonight
no new evidence or testimony will be
presented information on the procedures
for oral argument before counsel
and the filings of briefs is provided in
bexley city code 1126.19
the appellant attorney hunt
council for six appellants and a pelier
attorney hodge representing the
community builders
filed briefs and council has received
these documents
appellant and appellate will each have
20 minutes council may ask questions
during the appellant and appalling d
um
20 minutes please do respect that uh
that time um but that is your time to
ask the questions
um at this time i'm going to ask the
appellant
mr hunt
would you like to have reserve time for
rebuttal
okay thank you
that's noted
so the oral argument will go in this
order the appellant will have 20 minutes
the appellate will have 20 minutes and
then we will have a five minute rebuttal
correct yes
i did thank you mark
so the appellant will have 20 15 minutes
the appellee will have 20 minutes and
then
the appellant rebuttal will be five
minutes
after that we will have a private
session to consider the arguments and
cases before us
this will allow the council members to
confer with our city's legal counsel
our seven members of bexley city council
city zoning attorney katherine
cunningham and city attorney mark
official will attend the private session
the during the private session council
may affirm reverse vacate modify the
order
a justification or decision of the board
no decision will be announced tonight
an open meeting will take place in the
future with a decision all parties will
be notified all present parties will be
notified of date and time
all right so i want to address a few
additional uh procedural related things
um
as miss uh just indicated the um
um
the this council uh for for a couple of
different reasons several council
members back in may of this year when
the appeal was filed with
from the bizap decision with council
indicated that they had some
concerns
issues
abundance for abundance of caution
reasons that they could not or should
not at the time hear the appeal and
allow it to go straight to common police
court as
you have heard and as most if not
everyone in this room is aware the
common police court judge remanded this
case
and indicated that pursuant to and it is
at 12
26.19 that city council has to hear that
appeal
um there are actually our four members
and i'm going to let each of these four
members
here in a second speaking and explain
their reasoning on the record but there
were four members of city council who um
indicated that they had some concerns uh
at the time about um
hearing the appeal three of those
members troy markham jessica assad and
monique lamke
are by virtue of their positions in
committee certain committee chairs on
city council also by ordinance a member
of the
bexley community improvement corporation
which is a um
bexley's um development designated
development authority um
after reading the the fourth member uh
mr individual mr sharp um indicated that
he had some reservations and
i'll let him to speak to those as to
what his
current thought process is on that um
with regard to ms lamke mr
markham and ms saad
after reviewing the court's decision
conferring also with catherine
cunningham and conferring with each
individual three members it's my
conclusion based on what the judge said
and based on 1226.19
that the um those three individuals um
can and should hear the appeal provided
that they are able to
um
affirm assure everyone that they can
hear
this case based on the facts um and the
arguments of the parties um and the
applicable laws so um with that i'm
going to turn it over to
well back to you jeff mizad and you can
you know start wherever with those four
members just to get that on the record
i will start with uh miss lamke
no but we have many microphones
tonight
i will state that i have read the
decision of the franklin county court of
appeals and after a consultation with
legal counsel
it is my belief that i can hear and vote
on and proceed with tonight's appeal
thank you miss lamke
mr markham
let me ah my microphone works
yes uh uh i accept the uh the legal
decisions i will
uh
have no trouble hearing tonight's uh
legal proceeding objectively rendering a
fair decision
thank you mr marcum mr sharp
okay um
when the original appeal was
filed with city council
prior to that
our legal
our attorney had given us advice that we
shouldn't speak about any issues to
anyone regarding the potential case
when it became apparent that there
could be a reason for um cic members um
to recuse themselves
um i felt that was
or the and that we might not even hear
the case i felt that was an opportunity
to try to speak to some individuals
involved with the case to come out with
come up with an alternative solution
that could satisfy
various
opinions on the project um
and then after that um mr
official
um relayed to council that
he was going back to his prior advice
for everyone to say um uninvolved so i
felt in the interest
when we did a vote that
that i should should recuse myself at
that time based on that interaction
but with the court's decision
um
involving the cic members
and indicating
that
they did not have a
conflict per se
um
due to their relationship with this cic
and they voted in november in support of
a relationship with the property
developer and with knowing the
properties that were involved
um i
felt that the court looked at that and
determined that
even though they had an opinion on the
project
that they could
be included in
the appeal
process with a
objective
voice so i feel that
as time has passed
the that
i can look at the case
and apply um the facts and evidence
to
the not the
pre
issues with the mayor and and what not
in the project coming up but
in relation to
how the um board
voted on the project and
um the application of law thank you
thank you mr sharp
and then speaking for myself
um
due to the fact that the franklin county
court of common pleas did not see a
conflict of my serving on this the cic i
do feel tonight that i can hear both
briefs and have an un partial and
non-bias
and
okay so just a couple other things for
the benefit of everybody but primarily
city council i just wanted to remind you
and again you have a packet in front of
you and obviously there's more to it but
you have a packet in front of you with
both parties briefs with the um decision
of the common police court with the
decision of bsap and two relevant
statues 12 26.12 and 12 26.19 again i'm
not suggesting that's everything this is
just sort of a summary so you
conveniently hopefully hopefully
conveniently have it in front of you
thanks to ms cunningham's suggestion a
good suggestion um but i also wanted to
remind uh the
council as you're listening to the
arguments what the standard is in
1226.19
oh h and i primarily maybe j as well
yeah so in 1226.19h
um
the um
what i'll just read it it says if if
upon oral argument and of course the
briefs of the parties as well
consideration of the record and decision
of the board meeting bezap
and briefs
filed pursuant to section f of this
ordinance council finds that appellant
has failed to prove by clear and
convincing evidence the decision of the
board appealed from is not supported by
the record or is unreasonable or
unlawful it shall affirm the same it
shall affirm the board's decision there
is a clear and convincing standard which
generally is defined as something more
than a preponderance of the evidence and
but not a reasonable a doubt so
appellant doesn't have to prove by a
reasonable doubt that the
b zap decision was incorrect but by
clear and convincing evidence and that's
really for you to weigh in your minds um
paragraph i of this ordinance 12 26 19
states the council shall give deference
deference to the findings and
conclusions of the board being appealed
from and shall not substitute its
judgment for the judgment of the board
and that paragraph jay says consistently
as as mississauga already indicated
consistent with
this count
your findings council can affirm reverse
vacate or modify the order adjudication
or decision of the board
two-thirds of this body must vote in
favor of um
of um
reversing vacating or modifying the
decision of the board um which of course
is five of you i think that's the math
so with that i will unless council has
any questions um i think we're probably
ready to proceed with the actual
arguments
discounts will have any questions
okay
and i guess i want to say one other
thing i'm sorry just so it's clear on
the record when miss saad indicated that
council will be deliberating in private
um this is you know as folks i think
everybody here knows but again for the
record this is a quasi-judicial hearing
it's not council sitting in it
it's legislative capacity so sunshine
laws technically don't apply uh which is
why city council is permitted to do
to deliberate in that manner
thank you mr fischel okay
all right with that being said we will
uh welcome our appellant um you can come
up to the podium here
and feel free to move that podium to the
middle too right sorry somebody should
have done that for you but we will wait
to start your 20 minutes until you
no worries
and i will give you a five minute
warning and i will give you a one minute
warning thank you okay and feel free to
um you're socially distanced if you need
to pull down your mask
we welcome that
are we set ready to go in that
powerpoint
yep and do you just want me to notify
you when to turn the page
[Music]
so good evening my name is brian hunt of
loveland law llc legal counsel for the
appellants in this case
go to the first slide please
a little bit of background information i
think as council is aware we're here on
the administrative appeal of the bzap
decision approving the request for two
conditional uses
to allow dwelling units on the first
floor of a commercial service
district and to allow dwelling units on
the upper floors of the commercial
service district
the development in question is a
three-story approximately 35 000 square
foot apartment building that will
contain 27 apartments
comprising approximately 58 bedrooms
with 30 parking spaces
all located on less than an acre of land
0.74 acres more or less which equates to
roughly 36.5 dwelling units per acre
the property is zoned as a commercial
service district
and there is no commercial use
intended for the property next slide
please
so before we delve into the
fundamentals of the um the appeal i
think i just want to talk about some
basics which i'm sure everybody knows
but it's important i think to go over
and make sure that these are in the
front of your mind as we're going over
this appeal
uh it pertains to bezap's approval of
the conditional uses pursuant to part 12
of the bexley code of ordinances
planning and zoning code in this case
the controlling law
administrative bodies are generally
afforded a reasonable level of deference
and discretion in their decision making
and judgment and the backs of code
requires that as well in this review
however administrative bodies may not
ignore the law they may not act contrary
to law and they may not otherwise act in
an unreasonable arbitrary capricious or
unconstitutional manner next slide
please
in this case the b zap's decision was
contrary to law it was unreasonable and
was arbitrary for several reasons
among those the elements of section
1226.12 were not met thus the
conditional usage should not have been
approved
second the conditional use approvals
effectively rezoned the property and
such changes should not occur through a
conditional use process
third the decision to only require 30
parking spaces was arbitrary and
reasonable and material part of this
decision
so in light of these issues there is
clear and convincing evidence in the
record that b zap's decision should be
reversed and it would be an error for
this council to merely defer to b zap's
findings and conclusions and affirmative
decision
next slide please
i believe you have 1226.12 in front of
you this is just another copy of that
next slide please
if you review
1226.12 several things are apparent the
first is that there are numerous factors
that must be met in order for
conditional use to be granted the second
point is that all of the factors and
considerations must be met and it's
noteworthy that 1226.12 was recently
amended by ordinance to include the word
all in the final sentence of the
introductory paragraph which highlights
the importance of meeting all of the
criteria a through h
and third is the applicant's burden to
demonstrate that these factors are met
next slide please
a lot of attention and focus in the
b zap hearing was on the factors listed
a through h in 1226.12
but those are not the only criteria that
must be met in order for conditional use
to be approved in the introductory
paragraph it requires that the intent of
the zoning code and the intent of the
zoning district in which the property is
located
must meet must be met and the
development must fit harmoniously with
adjacent uses and structures and comply
with all other provisions of the zoning
code
pertinent here a commercial service
district is an area of the city that is
presently developed for primarily quick
stop commercial service use it's a
commercial district
and the code requires that you should be
protected from conflicting activities
and incompatible scales
here tcb's intended use of the property
clearly does not meet that intent of the
cs district specifically the proposed
use is for a high density multi-family
housing in other words a
apartment building and no commercial use
is intended for this district
further the development does not fit
harmoniously with adjacent uses and
structures to the west is
additional
uh commercial activity and to the north
and the east are single-family homes and
again
this proposed use would not fit in terms
of the use or the structures in that
area next slide please
in addition all of the criteria
contained in subsections a through h of
section 1226.12 must be met
here though most if not all the factors
were met in this case and for instance
1226.12b requires that the use will not
have a negative impact on the
neighboring land uses
larger community because of the
differences between the proposed use and
existing uses in the comm community
during the hearing tcp focused on
characterizing the development as a
transition point between commercial and
residential areas and opined that the
development as residential would be less
intensive compared to other allowed uses
in the community service district
commercial service district excuse me
and the issue with this there are
several things first of all we see
repeatedly throughout the hearing the
idea that this is going to be a
transitional point and that as a
residential use it's it's proper there
and first of all it doesn't respond to
the criteria in this factor completely
dances around it and second the idea
that this is residential does not imply
that it's a good transition we're not
talking about single family or duplexes
here we're talking about a multi-family
high-density apartment building
and several other factors
are treated in the same manner and i'd
refer you to the brief with references
to the record for that
and given this the conditional uses
should have been denied
next slide please
second the
b zap's decision to approve the
conditional use is effectively amounted
to a de facto rezoning of the property
the approval circumvented the proper
procedure in terms of the law which is
to rezone via planned unit development
and that's
present in the section of the bexley
code that deals with residential uses
and it states that where
a use is more intense than what's
provided for in the code a pud should be
saw
and the reason that makes a difference
is because seeking approvals through a
pud pud
amounts to different standards and
different procedures and it could result
in a different uh
result as well there's a development
plan and then just different levels of
review
the end result here is that the property
is being used in a way that is unique to
any other property in the city
there is no other commercial service
district in the city of bexley that
contains residential uses
let alone high density multi-family in
this case an apartment building and with
few exceptions all apartment complexes
in the city are located in puds
and essentially this refers back to the
condition use required requirement that
the use is consistent with the zoning
code
bezap's decision here is closely
analogous with unlawful spot zoning
which was defined by the supreme court
as a singling out of a lot or small area
for discriminatory or different
treatment from that accorded surrounding
land which is similar in nature again
there's no other property in the city
that is being treated this way there's
no commercial service district that has
an apartment building or any like i
suppose the current property does have a
single-family home on it but the idea is
that that's going to be demolished and
then this will be built but outside of
that no commercial service district in
this city has residential use
and practically all apartments in the
city are under puds
thus there's further support that this
decision was unreasonable and unlawful
it must be reversed
next slide please
the final point we wish to make is that
the b zap's decision to adopt 30 parking
spaces was arbitrary and unreasonable
it is true that the bexley code does not
contain the explicit parking standards
for residential dwelling units in
commercial service districts however as
we previously established the approvals
here effectively rezoned the property to
an entirely residential use and the
bexley code does contain clear parking
standards for residential districts and
those range from 1.5 spaces per dwelling
unit to two spaces per drawing unit
additionally the commercial service
district text and the code suggests
looking to neighboring properties or
excuse me neighboring communities where
appropriate for development standards
and in this case when the code is devoid
of parking standards it would make sense
given that this property is across the
street from the city of columbus to look
to the city of columbus's code for
guidance as well here
and in that case the code of columbus
would require one and a half spaces per
dwelling unit for this type of
development pursuant to their code
next slide please
in this case though rather than looking
at residential standards bzap looked to
the standards for mixed-use commercial
districts which is another form of
commercial district for guidance and
this is misplaced for the same reason
that allowing solely residential uses on
this commercial district would be
wrong
mixed-use commercial districts are
intended to allow and allow and
encourage shopping and business in the
city and are specifically meant to
promote mixed use residential commercial
office and pedestrian oriented
development
and mcu's do designate one space for
drawing unit but there are stricter
requirements for other types of uses so
for instance
certain type of shopping uses may
require one space for 250 square feet of
uh space
so bizap's decision to look to another
commercial use it
district that is intended for purposes
solely unrelated to those proposed by
tcb was also arbitrary unreasonable
next slide please
so in light of the foregoing beezap's
decision to grant the conditional uses
sought by the community builders was not
supported by the record it's
unreasonable and is unlawful accordingly
city council must reverse the decision
or at a minimum vacate or modify the
decision pursuant to
1226.1 j
of the mexico ordinances
thank you
mr hunt i have two questions for you if
you don't mind
if there's no parking requirement on
point
how can you say that the adoption of the
one-to-one ratio was
arbitrary or unreasonable
because again they're looking to another
commercial district for a district
that's going to be entirely for
residential use
when the text of the bexley code states
that when it's appropriate and in this
case you have no
parking standard for commercial service
districts look to neighboring
communities and in this case you have
columbus again right across the street
this is a long livingston its
residential uses would propose uh one
and a half parking spaces per unit and
it just makes sense that the requirement
for parking is different for residential
uses than it is for commercial so why
look at a
district where it's required that there
be a mixed use commercial and
residential when there are alternatives
available that are strictly for
residential uses it's just uh
in my opinion an unreasonable approach
to take
thank you um and regarding the eight
factors in 1 22 6 12
would you concede that tcb properly
approved
any of those factors and if so which
ones
i don't believe so not in their entirety
though
okay are there any that are not in
dispute
that
that i can see they did approve no not
in their entire point thank you thank
you
any other questions council
mr sharp
yeah
um
do you have an understanding as to
whether there's a legal definition for
conditional use as
i mean is that
the use itself is it just conditional of
the structure or the type of business
operation well
generally under zoning code you can have
permitted uses uses that are permitted
as of right and things that in this case
in the commercial services district you
would be allowed to do in the commercial
service district without requiring any
additional
approvals or
permission
conditional uses are generally thought
to be
uses that because of their intensity or
because of the
maybe they're a little bit different
that they require additional review and
conditions attached to ensure that they
i guess
fit within the city and are not going to
be an issue if you would
which is why too and i would point out
in 1226.12
um
in that introductory paragraph i think
this is important language states this
zoning code assumes that conditionally
permitted uses are not appropriate
unless an applicant proves that the use
will not be detrimental to the public
health safety or general welfare of the
city so the starting point is that
conditional uses are not appropriate
unless the applicant proves otherwise
any other questions council i
i do have one um mr hunt looks like
we've got about seven
six and a half minutes left he's got a
little above you got about two minutes
okay since he wants to have some revenue
yes
okay so um you mentioned in your brief
high density
and i never could you help me figure out
um
where that's defined or define it for me
it's not defined in your code it really
isn't and that's somewhat i don't want
to say it's problematic but we're
dealing with a situation here where it's
i think 36 and a half dwelling units per
acre
if you were to look at other codes i
think you would find that that is
quote unquote high density
a lot of times in westerville for
instance i know off the top of my head
some of the more intensive residential
uses look at seven to eight dwelling
units per acre for the more dense
requirements
city of columbus i don't know but i know
the city of columbus for instance has
apartment
districts bexley doesn't it actually
just has
different definitions for various
residential districts that kind of
vary from single
non non-dense
to
um i think the most intense
i believe is single family um high
density there is no multifamily high
density
standard if you will in the code
standard district
that i'm aware of i'm sorry i'm sorry go
ahead we're at 15 minutes so
to preserve your time for rebuttal i
think
that's
done so if we can if everyone can move
on
sounds good thank you so much mr hunt
thank you
all right um
mr hodge
is representing the appalli
um the community builders
and you will have 20 minutes so when you
are ready
very good uh thank you
um
council president fibel uh zoning and
development chair assad my name is david
hodges
this evening on behalf of the apple e
the community builders
i'm also a bexley resident my uh
home address is 211 south ardmore road
and notably my first home uh ever was at
924 south cassingham which is about 1065
feet as the crow flies from the subject
property that's a home i own and tend to
move back to
and when i do i will uh welcome being
neighbors with
this redevelopment
the subject of the appeal tonight with
the community builders
uh the city code and i'm gonna i'm gonna
go into some detail uh
uh mr fishel uh about some of the things
you mentioned on procedure and exactly
what it is that we're doing here tonight
uh not to be redundant but just to just
kind of delve a little bit deeper into
that aspect
so the city code at section
1226 19 which is appeals to city council
provides the framework for this
proceeding
and it gives council
uh some some directives
among which are these that i know
you'll all be mindful of as you go into
your private deliberation later and
render your decision
under 1226 19i
council is to give deference
to the findings and conclusions of the
board of zoning and planning
and what's that mean you know why is
that a part of the code
um
the reason is and there's a there's an
abundance of case law on this subject
matter under ohio law
is that
the board of zoning and planning
is the body in this city that is closest
to the zoning code they it's their it's
their job on a monthly basis however
often they meet to know the zoning code
to administer the zoning code to
understand the zoning code and to hear
applications like the one they heard for
the community builder so they know it
they are our they are are our
communities resident experts on the
zoning code so the law says you take
that seriously and you and you give them
deference uh it that's a directive to
counsel and i hope and i hope that when
you go into your private deliberation
you'll keep that in mind
that decision is to be accorded a
presumption of validity
because they are closest to the issue
uh and all the interrelated issues with
the zoning code
development design
variances conditional uses rezonings
uh
making a decision based upon their
uh professionalism and their
understanding of zoning is precisely
what they did on the application
for the community builders
our our bexley bees app
and i thought of this driving over here
tonight they are they are i would say
that they are likely among the most
learned
boards of zoning and planning in the
entire state it is comprised of
attorneys design professionals
architects uh administrators etc a a
very uh well-heeled board who uh in this
case made a good decision
that group after two public hearings
uh consideration of the abundant
testimony that they heard and with their
expertise in administration of the
zoning code
determined that the community builders
proved that its request met all
of the factors under section 122612 of
the zoning code which is the conditional
use section
under
1226
19h
another directive to counsel is that it
must affirm the bzap decision unless mr
hunt and his clients prove by clear and
convincing evidence that the b zap
decision was not supported by the record
or is unreasonable or unlawful
so to state that another way in order
for the be zap decision to be overruled
you must find that it is highly probable
or reasonably certain
that the learned professionals
comprising our bees app made the wrong
decision
they most certainly did not make the
wrong decision
uh the appellants whether uh through
their testimony at b zap
their written work product
or their oral argument this evening
has failed to meet their burden that
it's highly probable or
that bizap made an unreasonable unlawful
decision based upon the entire entirety
of the record before you this evening
so again the conditional use criteria
are found in
122612
of the zoning code there are eight of
them
tcb's application meets them all
uh it it it
proved that through its testimony
uh testimony of its personnel uh here
with me tonight nicole boyer knight
uh a presentation a uh
powerpoint presentation that is in each
of your packets uh leading to this
meeting this evening
the testimony of qualified professionals
affordable housing experts a a traffic
engineer uh at the firm carpenter marty
one of our region's really most renowned
traffic engineering firms uh who who got
involved to study this parking issue and
an impact on the public infrastructure
uh the
streets parking etc
i'm going to try to go quick here
fearful that i'll run out of time
but i'm going to restate each of the
criteria and refer to your packet uh
where you can find the material that's
before you that supports the proposition
that each of the individual conditional
use criteria were met
so the first criteria
provides
bear with me just a second
provides that the use is consistent with
the goals and policies of
any adopted plans of the city of bexley
any any adopted plans of the city of
bexley including
but not limited to
the main street guidelines
uh
i thought that um council member
lampke's question
uh to mr hunt was was interesting asking
that he concede that that uh that the
appalee met any of those
and
certainly
certainly when you go look at the
evidence that's before you the
presentation that that miss boyer knight
did to council hopefully you'll know
that
one of the city policies that was cited
at that time is the city of bexley
diversity equity and inclusion strategy
that this council adopted last year
which
states as a goal to create an inclusive
greater bexley community and this is a
verbatim quote continue to encourage the
cic in their efforts to identify
affordable housing opportunities for
people with low incomes as part of a new
development including but not limited to
rezoning or and rehabbing current and
future building and projects as well as
on its own
this council adopted that last year
any what's the language any
adopted plans of the city of bexley
certainly this project meets that
uh the city of bexley strategic plan
from 2013 provides our vision is a
bexley that is a top tier community of
extremely high quality and excellence
and excellence that is centered on
families of all kinds
this project is work towards meaningful
redevelopment of livingston avenue
and it ensures affordable housing
options continue to be available for
residents uh in this area and in our
community so
we meet criteria one
or a 12 26 12 a b the use will not have
a negative impact on the neighboring
land uses in the larger community
because of the differences proposed
because of the differences between the
proposed use and existing uses in the
community now they want to
the appellants want to
um
make little of the notion that
this conditional use is allowed
by right under uh this section of zoning
code now it's not a permitted use it's a
conditional use it says we have to meet
these criteria but we're not de facto
rezoning the property or spot zoning the
property or anything else this is
specifically
allowed
as a conditional use in the cs district
under the city's zoning code as it's
currently written
now we did mention and i'll mention now
that
uh we do make an argument that
uh
this use which is residential next to
residential is appropriate um
and and and in many cases more
appropriate than the than the underlying
uses that are allowed by right permitted
uses in the cs district
so
i believe on that basis
we meet uh
b
but you can further look at the
powerpoint presentation that's part of
the record uh at page eight which is
where the community builders uh made
that argument
with reference to section c the use will
be not what will not be hazardous to or
have a negative impact on existing or
future surrounding uses i reiterate the
argument that i just now made and remind
the council that uh that that the
application came to the bee zap with the
full endorsement of the administration
with a very powerful advocate in the the
outside city planner uh they that the
the the be zap heard that with the
benefit of a of a very well done uh um
uh uh staff report from mr suti uh which
as well as the the traffic engineer we
believe that that ably demonstrated that
the use will not be hazardous has
hazardous to or have a negative impact
uh on existing or future surrounding
uses how am i doing on time mr official
okay
section d the property and any proposed
modifications meet or satisfy the lot
yard or height requirements in the code
and other general code provisions etc
essentially meaning it meets the code it
meets the development standards of the
code here there are no variances
associated with the request so we meet
section 4 by virtue of the fact that no
variances were associated with the
conditional use request
e the use does not create an undue
burden on existing public facilities and
services
such as street utilities schools or
refuse disposal
there may be an argument that that the
appellants would make that it's going to
lead to some on-street parking
issues
by virtue of the number of parking
spaces provided but i'd remind the
council on that point there is no
variance requested uh for a reduction in
parking we parked this consistent with
the city's recommendation as to how it
chose to administer that uh that
requirement on this
applicant
and and that's what we did we also had
the support of the traffic engineers at
carpenter marty that this use would not
unduly burden the the public street in
terms of parking
all information again that's before the
council
in the powerpoint presentation from the
community builders
uh f the use is consistent with and or
furthers the city's economic goals and
will not decrease property values or
have a negative economic impact
again
that is in that is supported in tcb's
powerpoint presentation
um
it it this will not have any negative
impact on the city's economic goals uh
whatsoever
i think if you
if you look specifically at page 16 of
the powerpoint presentation there is
some material in there
that makes reference to i'm sorry
section page 17
uh and 18 that makes reference um to
that there were some studies that were
submitted that demonstrate that that
this type of development does not have a
negative impact on property values
surrounding
this type of proposal
the use is in character and keeping and
compatible with adjacent structures and
uses again this is residential next to
residential as opposed to what the code
would allow by right which is commercial
next to residential you know we have the
old monroe muffler and break or whatever
that's called there that's to the west
of the project certainly the proposal
with this application is
better for adjacent residential uh than
what could happen by right under the
code and last any proposed construction
will not result in the destruction loss
or damage of a natural scenic or
historic feature of major importance
certainly that is not the case
uh for number for letter h
uh there is no uh destruction loss or
damage of any natural scenic or historic
feature of major importance and i'm
confused as to how
that one could not also be conceded uh
by the appellants here i think i'll stop
with that
the appellant has not met its burden
we respectfully request that this
council affirm
uh the decision of the board of zoning
and planning and i'll do my best to
answer any questions that any of you
have
mrs lampke
mr hodge i see that the record contains
multiple instances of expert testimony
and studies presented by tcb
can you tell us if any expert testimony
or studies were proffered by the
appellant
and where they exist in the record
to my knowledge there were not
there was no expert testimony proffered
by the appellant and if it if it's in
the record i could not tell you
thank you
mr markham
your brief has a lot of information
about parking including a lot of
comparative studies i'm just curious it
may be answered
elsewhere maybe even in the powerpoint
but i'm curious about the comparison to
the bexley apartments 1.29 per unit
it says the utilization rate is 42
do you know how that
figure is gathered is that an
average of throughout the day or how's
that figure would it be okay mr markham
if i have if i have
my client answers
we did parking lot counts on
oh sorry nicole boyer night with the
community builders 736 oak street
columbus ohio two zero five thank you
we did parking counts for um a week
doing um morning midday and evening
in um
at that location as well as others
throughout bexley to get a utilization
average utilization rate
mr sharp
um
so
why do you think
there's there is the pud pud district in
the zoning code
um and
when i look at the zeni map
they're um
they're in residential
areas
but in the high density residential
areas that
it limits multi-family dwellings not to
exceed four dwelling units per structure
townhouses not exceeding six attached
don't you think the planned unit
development was an option
that was allowed
in those
high density areas to keep help keep the
character and
and and shouldn't counsel follow the
intent of zoning intent
it's a fair it's a fair question
and i mentioned earlier i'm a zoning and
land use lawyer and so
uh
you know i handle a
fair number of sort of new projects and
shepherd them through the process and um
often there is more than one way to skin
the cat when it comes to zoning
is is the re rezoning process making use
of the of the pud an option here sure
it's an option
but when you go and refer over to the
permitted uses
or the or the family of uses allowed in
this particular zoning classification
and you see that first floor residential
and upper story residential is provided
in there as a conditional use
then that is in fact a viable option to
pursue with reference to entitlement of
the property as proposed by the
community builders and that's the that's
the option that that was pursued at the
time of the application
got two minutes so if anybody has any
two minutes if anybody has any
additional questions let's try to make
them short
no more questions from council
okay thank you thank you
mr hunt you will have um
to represent the appellants you will
have five minutes for your rebuttal
thank you i don't think i'll need
five minutes
quickly
um so a few points to make and as we
brought up in our
oral argument earlier which i didn't
hear
from the appellees i i didn't hear how
this meets the intent of the zoning code
i didn't hear how this meets the intent
of a commercial district and the fact is
that it doesn't this is a commercial
district commercial services district to
be precise
located in
defined in the chapter of the bexley
planning and zoning code that pertains
to commercial uses
and the text of the bexley code of
ordinances
states that this is intended for
fast stop commercial use and no
commercial activity is uh anticipated
for this property so
notwithstanding factors a through h it's
clear that we don't even get to there i
mean the threshold is not met the intent
of the
district has not met in the zoni code
clearly contemplates that a rezoning to
a pud would be more appropriate if you
look at the residential
factors
a few other just
things in passing
and i forgot to bring this up in my my
initial
um oral argument but the apellis talk
about uh
expert testimony and in particular from
the traffic
and what's interesting and i think this
is
page 11
of their power points
um and and again it was even mentioned
in the pelle's argument that this
conditional use will be less
intense than some permitted uses
well i'm looking at this table
and it identifies and i i'm assuming
that this was provided by the expert
it's not clear from from this powerpoint
but for instance it identifies
automobile parts and service centers and
self-service car washes as quote unquote
permitted uses but if you look at
1254.09 which is the identified
identification of uses in commercial
districts automotive repair and car
washes are conditional uses so there
appears to be an error an error at least
in this table and again if this is an
error on their expert's part i question
how accurate the rest might be
and for instance for multi-family
housing no real information is provided
i don't think a study was actually
provided just testimony there it
identifies 9 a.m peak total trips which
in a trip is one person leaving or one
person coming in so
according to this report
in the a.m peak time so the busiest time
in the morning there would only be nine
people going in and out which just
strikes me as counterintuitive
so um i think some of the expert
testimony and and regarding the um
reports that the apellis stated were
submitted regarding
property values i don't believe any
actual reports were submitted this was
all hearsay
offered by non-experts there were no
appraisers nobody visited the area
nobody walked it and it was qualified to
say that this type of development will
not have an adverse impact on property
values on the other hand property owners
appeared before b-zap and testified that
they were concerned about property
values and ohio law does recognize
property owners as being qualified to
testify about the values of their own
property
um i think the last point just to
mention
is well two more things um
first of all it's
it's noteworthy that nobody appeared
before bzap in support of this
application who is not affiliated with
tcp who is not their expert or represent
representative of the company
nobody from the city of bexley appeared
and said
we want this here
many residents appeared from the area
and they were concerned about privacy
they were concerned about parking they
were concerned about traffic they were
concerned about
security not not just their own but the
potential security issues of a apartment
being located along livingston avenue
that busy corridor especially if there's
going to be children all these things
were raised
and issues and why this should not be
approved bees have totally disregarded
all those things
um
and i think the final point i'd just
like to make and it goes back to what
this city council is supposed to do
true the code states that you should
give deference to be zapp and i don't
disqualify any b zap members i know they
all work very hard it's a difficult job
but people make mistakes
and here what the city council needs to
do is look at the record and
pellies and appellants are going to
disagree on what the evidence says
but this council
can look at the record and i believe
what it will see is that the record
shows that this decision was not
supported by the evidence and that's
going to be clear and convincing and for
that reason
the decision of bzap should be uh
reversed or remanded thank you
i guess i'll ask are there any questions
we had about five minutes or so
okay thank you mr hunt we we met our
five minutes thank you appreciate it
thank you
so at this time um we will be moving
into private session as council and our
legal counsel
and
wanted to thank everyone for your time
tonight
this proceeding will be
in recess um and as miss uh indicated
they it will re they they will reconvene
sometime before the end of the year um
uh is
and to um
actually announce their decision um and
as as she's said to obviously the
parties will be notified when that is so
you can attend if you so choose um
at that point there won't be any
additional arguments or anything like
that of course
yes so with that i think we're done yes
thank you