Category: Township Governance

Keepin It Rural

There’s a movement in my community to “save” it — save it from developers who see hundreds of rural acres as the perfect place to make a load of money building and selling homes on small lots. And probably save it from people who move into a development surrounded by hundreds of rural acres and want to complain that cow poo smells bad — not something I’ve heard of here yet (which could just be that no one’s said it to me), but a friend of mine lived in a development that overlooked a scenic dairy farm. People bought into what almost amounts to agrotourism in my head — look at that pretty chuck of Americana over there. And you get to live right next to it! Aaaand then some people from the development tried to get local regulations changed to stop dairy farming because, well, animal poo does stink. Luckily Ohio has right-to-farm laws that protect farmers in these types of situations — unless you’re really outside industry practices and have an especially stinky farm, you don’t get shut down just because the development that moved in next door doesn’t want to smell cows.

It’s one thing to buy a couple hundred acres of your own and not develop it. Easy enough — don’t develop it! It’s another think altogether to buy two or three acres and not want any of the surrounding land to be developed. Not impossible if you are lucky enough to pick up property next to a park or something. But a tough ask when surrounded by other residential homeowners. Which is why I think a bigger part of the movement is an attempt to protect rural areas from mass agro. I don’t think many farmers approaching retirement actively want to sell their couple hundred acres to a developer. What they want is to cash out millions of dollars from their land to fund their retirement. An understandable desire. Many farmers I know would love to have kids that are interested in taking over the farm after they retire. But the reality that I see within small-scale farming is having a second job to pay for the farm. Maybe my experience if skewed because I work in IT — it’s a field that’s great for contract work, so people can work a few contracts during less busy farming seasons and focus on the farm in spring and autumn. But I don’t know anyone who literally makes their entire income from farming. Retired people who make extra money farming. IT folks who subsidize the farm. There’s a chap we follow on YouTube who left an architectural firm — they seem to live on their farm proceeds, but I don’t actually know him.

My point being? I think a big part of sustaining rural communities has got to be changing how we shop for food. Changing how restaurants source food. If some mass agriculture company grows corn on ten thousand acres and sells it at four bucks a bushel … we’ve got to value the small rural farmer enough to be willing to pay maybe six or seven bucks a bushel that provides a sustainable income for the farmer. That would also create an environment in which farmers who want to retire would have people who look at purchasing the farm as a viable small business opportunity. Instead of a developer being the only realistic option — seriously, who wants to be destitute in retirement so someone else can enjoy a couple hundred acres of undeveloped property!?

 

County Building Department

It strikes me, every time I talk to someone from the auditor’s office or the building department, that county officials must talk to a lot of people after-the-fact … like they built a shed, someone noticed it, and now they’re going through the permitting process for that shed. Because they always seem surprised that I’m in the planning stages of a project and am ringing them up to make sure I’m doing all the right things in the right order.

My note-to-self for the day — while the Medina County Building Department does permit fences over 6′, they do not require anything for agricultural buildings and fences. If you’ve got an agricultural exemption from the Township for a building, they’ll happily agree that the fence around / next to that building is for agricultural use as well. (For non-agricultural fences, you fill out the residential building form and specify the perimeter of the fence for the sq ft area and not the square footage enclosed by the fence).

Thus, I’ve concluded that the steps to build a bigger chicken coop and a pasture are:

  1. Submit the agricultural exemption form to the township
  2. Once it is approved, e-mail a copy to the Medina County Building Department for their records (so when someone rings them up about some construction that doesn’t look like it should be there, the don’t have to waste a day driving out to look at a chicken coop)
  3. Build it

Our coop and greenhouse shouldn’t need a permit from the county because the size is under 200 sq ft.

Zoning, Conditional Use, and the Comprehensive Plan

Long blurb I’ve written in response to the public outcry about the Hinckley Township BZA approving a conditional use permit for Pride One to construct senior apartment housing in a business district:

Since ‘senior housing’ is a conditional use in business districts, my opinion is that our zoning resolution put the BZA in a bind where they *had* to approve the request. When the BZA rule on something, decisions can be appealed in court. Now, if you wanted to build a shed a few feet into a riparian setback and they said no, you probably wouldn’t blow a couple grand on a lawyer to convince a Medina County Court of Appeals judge that the BZA were wrong. Big companies, on the other hand, will absolutely do that. Almost every case I see in the court docket is <Some Company> v <Some Township’s BZA>.

The setback variances, as an example, the company never presented any good justification for *needing* the variance. They wanted to build more stuff and ‘needed’ to build where they weren’t allowed to in order to have more units to rent. “I want to do it” isn’t the bar you’ve got to pass when requesting a variance (otherwise zoning rules would be pointless!). Had they taken appealed the denial in court, I expect the BZA’s decision would have stood. There are cases where the court determined that you don’t have a right to the *best* use of your property — in this case, they don’t have a right to pack as many units in the lot as possible.

The conditional use approval? If it had been denied, Pride One would likely have won an appeal (and quickly). We’d have the facility right where they wanted it, and they could have gone after the township for “damages” — legal fees, lost business, etc. Why? Because ‘senior housing’ is specifically listed as a conditional use for business districts. Our township comprehensive plan says residents *want* senior housing so long-time residents who no longer want to care for two acres don’t have to move away from the township. It’s not like we’ve got five other senior housing facilities that have already more than sufficiently addressed this need. There’s nothing in our zoning or comprehensive plan that says we want to slow the creation of senior housing facilities. They’ve got a lot of evidence that their senior housing facility should be allowed. I cannot think of any good (i.e. would stand up in court) reason the BZA could have given for denying the conditional use.

Which, of course, begs the question ‘why are we allowing senior housing in business districts!?!’ … and that, it seems, is the result of a comprehensive plan that got feedback from some 6% of the residents back in 2014 or 2015. Why would someone say “ok, that’s a reasonable response rate … I’m going to write up what the township wants based on these responses” is a great question. It seemed, from the past few Trustee meetings, that it’s possible to revise the comprehensive plan earlier than planned. That would be the first step in avoiding this in the future — once the plan changes, it’s reasonable to revise the zoning resolution to address the newly stated desires of the township. And, if there is an update to the master plan, make sure you respond to whatever survey is used. Make sure your friends who live in the township respond. Make sure your neighbors respond. Claiming to develop a plan based on responses from a small sampling of residents is absurd. Be specific — if you think we need more senior housing but don’t want apartments, then specify single-family residential senior housing.

I’d encourage people to read through the zoning resolution (https://www.hinckleytwp.org/content/zoning-regulations) and identify anything *else* that they don’t like. Look at the full list of conditional uses — you don’t want a hospital, then hospital shouldn’t be a conditional use either. Instead of reacting after the fact, we need to push through changes *before* whatever-it-is starts being built. Existing stuff gets grandfathered in (i.e. the senior housing is there even if we change the regulations), but new construction is limited by the new rules. Read the comprehensive plan (https://www.hinckleytwp.org/content/comprehensive-plan-master-policy-plan) and see if (1) it accurately reflects what you want to see in the community going forward and (2) if you think that plan is reasonably addressed by the zoning resolution.

Get engaged — attend township meetings (we’re starting to record the meetings and posting them on YouTube for people who aren’t able to join meetings at the scheduled time — https://www.youtube.com/channel/UCTffOEhdDc7UO0fN-tgyEnw) or read the minutes. Email the trustees to let them know what you think. Do you think the comprehensive plan needs to be updated? Should there be a minimum response rate to consider feedback to be representative of the community’s desires? Maybe you think the Township should explore adding a growth management plan — limiting the number of building permits available. Hudson did so to ensure the City didn’t grow faster than the capabilities of city services (police, fire). Maybe you think the lot size or setbacks need to be increased. Maybe you think everything is awesome the way it is. Whatever you think, make sure your voice is heard.

Keeping Hinckley Rural – Zoning

What do I think might help keep the township rural? I think we need a combination of changes to the zoning resolution, training for BZA members (possibly even replacing BZA members), and changes to how variances are written.

Zoning changes — Increasing lot size has been discussed, and doing so would certainly would reduce the amount of development. We might want to include minimum green space / maximum total lot coverage in the zoning regulations. Some townships out in Geauga County have looked at such regulations to retain rural character. As currently written, I believe I could transform the entirety of my 2 acre lot into driveway, parking lot, patio, etc. Or just pave the whole thing. Increasing minimum lot widths at the road might ensure homes are placed farther apart, although that might have the unintended consequence of moving some houses closer to the street with neighboring ‘flag’ lots in the rear. Increasing the side yard setbacks would ensure spacing between homes too. Including a slow growth plan — limiting the number of new construction permits per year — could ensure development doesn’t outpace the township’s ability to provide police, fire, and road repair services.

BZA Training — The BZA does not have legal authority to issue variances any time someone finds a zoning regulation inconvenient. Their authority is to issue a variance when strict adherence to zoning regulations deprives the owner of beneficial use of their property. An extreme example — a lot with a bunch of riparian setbacks that mean the buildable area is a 2×40 rectangle toward the front edge of the property. The BZA has the authority to approve a variance from the township’s fairly substantial front yard setback because a 2×40 buildable area has certainly deprived the owner of the ability to have a house on their residential property. Building a house forty feet into the front yard setback lets them have a 40×42 house that’s closer to the road than the zoning regulations stipulate. Building within a riparian setback can destabilize the bank of the stream, so isn’t a good option.

There are several variances where I don’t believe the requestor has shown a “practical difficulty” for area variances. These requests basically amounted to “yeah, I could do it another way … but I don’t want to”. The BZA does not have the legal authority to issue a variance, and I believe these variances would be overturned if challenged in court. That’s a whole process — and you’ve got to own one of the adjoining properties to have standing to challenge it in court. But there’s no reason the BZA should be exceeding its authority in approving variances, and it seems like they need to have what does and does not constitute a practical difficulty or hardship clarified.

Changes to how variances are written — I think variances should be written as restrictively as possible to address the specific problem presented to the Board. If my rear property line is 200′ long, and I want to build a 20×20 garage in the rear yard setback because of some Very Good Reasons, there is no reason for a variance of 20′ from the 50′ rear yard setback. Issuing a non-specific variance means additional, future, construction can also be built 20′ into the rear yard setback. Without having to show any difficulty in building the structure elsewhere — you’ve basically got a lot with a special rear yard setback instead of special permission to build that garage. Write a variance allowing 20′ at the rear of the property to have a 20′ variance from the 50′ rear yard setback. Write a variance allowing the building blueprints presented to the Board to have a 20′ variance.

Keeping Hinckley Rural – Senior Housing

While I don’t think any survey with a 6% response rate is a reasonable basis for determining “what the township residents want” … desire for senior housing, called out in the 2015 comprehensive plan, seems reasonable. Two acres is a lot of property to look after, especially as you get older and getting around is more difficult. Walking the woods and mowing the grass … I could see this becoming a challenge. An apartment complex at the edge of town isn’t a popular solution, but how could the township make housing more appealing to older residents?

To start out with, I think any high-density senior housing should be a unique zoning area. S1. Getting property re-zoned is a more difficult path than requesting a conditional use be permitted. There’s more leeway to not re-zone the parcel.

Conservation development allows a development to bypass minimum lot sizes by using a combination of open spaces and private lots to average out to the minimum lot size. That is, if I have 200 acres in a two acre minimum district … I can develop a hundred one acre parcels and hold the other hundred acres as open space. What if we combine the high-density senior housing with a conservation development idea. A conservation development with small front, side, and rear yard setbacks that make quarter or half acre lots feasible. Then the senior development is enveloped in a huge area of maintained green space. This would allow for continued home ownership (I sure as hell don’t want to start paying a couple grand a month in rent after I retire!), minimize yard upkeep (part of the HOA fees could even go toward yard maintenance), and the rural environment is maintained.

iJEMS Primer

The online docket site is located at http://www.co.medina.oh.us/medct_epublicnodr/UserLogin.aspx

Select “Public User Click Here” to enter the site.

Read the disclaimer; and, if you agree to the conditions, click “Accept”

Enter some search criteria – you can use a wildcard search (e.g. I wanted to find all of the Board of Zoning Appeals cases) or an exact name. By default, the date range is what I assume is their first record through today. Adjust as needed. Click “Search” to proceed.

You’ll get a list of matching cases. Click on one of the case numbers to view the case details.

You’ll see a case summary at the top of the window that appears. This will tell you the official case name, when it was filed, and the status. This is followed by a list of all of the parties involved.

Scroll down in that window to the “Actions” section, and you will see the case documents. Some will say “No Document” – for example, the case being filed is a record in the docket, but there’s no document. It’s just an event. Most items, however, will have a hyperlink that says “View” that can be used to open a PDF copy of the document.

 

BZA v BZA

the letter sent to homeowners to advise them of public hearings contradicts what the BZA says at the start of the meeting. I know it’s a form letter (and it’s used in many townships) and the spiel at the start of the meeting is some fixed text … but seems like the instructions int he letter can deprive homeowners of their right to testify before the Board. In the form letter, you are advised that you can attend the public hearing at such-and-such a date or submit a letter to the Board.

Sounds great. Except the beginning spiel that’s read at every public hearing says that Board members are not to consider as testimony any written correspondence that is not under oath. Oh, you had to write special letter in order for it to be given any consideration.

The spiel goes on to say that, while properly constructed letters can be considered testimony they should be given lower weight because the submitter is not available for cross-examination. That part didn’t make it to any minutes I’ve seen, but I’ve heard the chairperson say it. She, in fact, got rather curt with me for conveying exactly what she said at the beginning of the meeting to an employee of the Metro Parks when they submitted an e-mail with their opinion on a variance request. I don’t know which is true — maybe they’re giving equal weight to a written correspondence as they are to in-person testimony [this is the claim the chairperson made to me, how dare I tell the Board what they did and did not consider!] in which case the spiel at the start of the meeting should be reworded. Maybe they’re only giving consideration to sworn letters — in which case the public notice should tell you to send a sworn (or whatever) letter. Maybe a letter is basically ignored, in which case it should not be offered as an equally valid path for presenting your beliefs to the BZA.

ORC Agricultural Exemption and Commerce

While at a recent Zoning Commission meeting, they discussed how a use was judged to be (or not to be) agriculture vis-à-vis Township not having a right to regulate agriculture per ORC 519.21. The example of a greenhouse used to grow flowers was given — not agriculture. Which got me thinking about the false association between ‘commerce’ and ‘agriculture’ — flowers are absolutely included in Ohio’s list of agriculture. ORC 303.01 reads:

agriculture" includes 
 farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture;
 horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising 
    of livestock, equine, and fur-bearing animals;
 poultry husbandry and the production of poultry and poultry products;
 dairy production; the production of field crops,
 tobacco, fruits, vegetables, nursery stock,
 ornamental shrubs, ornamental trees, flowers,
 sod, or mushrooms; timber; pasturage;
 any combination of the foregoing; and the processing, drying, storage, and marketing
 of agricultural products when those activities are conducted in conjunction with,
 but are secondary to, such husbandry or production.

So why wouldn’t a greenhouse used to grow flowers count as an agricultural use? Wickard v. Filburn, 317 U.S. 111 (1942) — a fairly wide reaching case — found that Mr. Filburn producing wheat for his own use (i.e. not selling it) still counted as commerce because he would have otherwise bought the wheat on the open market. Which is to say his wheat production was commerce because it was grown to allow him to avoid commerce. While Mr. Filburn’s production was not substantial, the cumulative action of personal-use growers would have a substantial impact on the market. Which was enough commerce to grant the federal government power to regulate his wheat production.

Same holds true here — and I think flowers were used an an example because it’s easy enough to say “eh, it’s just flowers”. But my concern is that the Township is going to want to use the same logic to regulate other agricultural activities. The personal production of poultry products may not be substantial, but the cumulative production of everyone who has some egg layers in their yard would be substantial. Thus egg laying chickens that produce for personal use would still be considered commerce by the logic of WIckard v. Filburn. I think someone claiming agricultural use for flowers might have a bigger hurdle, but a sufficiently motivated individual may be able to use this argument to substantiate the agricultural exemption for their greenhouse.

Hopefully this is one of those situations where the government doesn’t try to have it both ways — if personal production is commerce in one case, it should be commerce in other (very similar) cases.