Category: Politics and Government

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.

Civics Lesson – Federal and State Laws

Civics classes seem to do a good job of explaining the framework for federal and state government. The branches and processes are covered as well. But, ironically, there’s not much information about laws enacted/enforced by these governments. Sure, you know the legislature writes a bill, both houses vote to make it a law, and the head of the executive branch (president or governor) sign their agreement with the law to actually enact it. But … then what? How do people know what the laws actually are?

Laws are maintained in the “Code”. There’s a US Code and state code — e.g. Ohio Revised Code (ORC) in Ohio. At the federal level, there are also regulations in the Federal Register — this includes rules (and proposed rules) individual executive branch departments enact. It also contains executive orders. States maintain their own registers — the Ohio Register, for example. Now, someone may think rules / orders from the executive branch fall outside the scope of the law — and that person is welcome to bring a suit challenging the law. But, unless there’s an injunction or the regulation has been overturned … it’s still a rule you need to obey.

In addition to the laws enacted by congresses and regulations written by the executive branch, the American legal system is based on “common law” — basically what a court decides about a situation based on their reading and interpretation of the laws becomes guidance for future or down-level cases. Which is to say you can read the Ohio Revised Code front to back and still not have a complete understanding of the practical implementation of laws within Ohio.

Take, for example, ORC 519.02 which states that

Except as otherwise provided in this section, in the interest of the public health and safety, the board of township trustees may regulate by resolution, in accordance with a comprehensive plan, the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas that may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures, including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of the township

That’s pretty open ended. What is a comprehensive plan? If you’ve got a chapter in your zoning resolution that’s called “Comprehensive Plan” is that good enough [spoiler alert: it can be … see Central Motors Corp. v. City of Pepper Pike, 63 Ohio App.2d 34, 65 (8th Dist.1979)] or does the Township need to break that chapter out into its own “Comprehensive Plan” document? Who is involved in writing that plan, how often can it be updated, etc. These details emerge as someone says “hey, court, I don’t think this is right” and the court clarifies some detail of the Code.

So you’ve got federal laws, state laws, federal and state executive branch regulations, federal and state executive orders, and decisions made in court cases that make up “the rules”.  Who do you complain to when you don’t like the rules?

Every time my daughter complains to me about being unable to drive, I tell her to write her state rep. Not because I particularly think the state rep is going to do anything, but “you have to be 16 to drive” is a state law. The only ones who can change a state law is the state legislature (I expect a federal driving age would be ruled unconstitutional, but starting at the federal level to change the ‘you only get our money if’ wouldn’t be a bad direction either. Sometimes the state has the law because federal funding is predicated on having the law — that’s how the drinking age got standardized across the country. But a state could, hypothetically, opt out of federal funding and do their own thing.)

What’s my point? If your township has some rule that you don’t like, there may not be much the Township Trustees can do about it. When the State Supreme Court has made a decision that creates a rule … you need to be talking to your state rep and senator to push to have that rule changed. They could pass a law that negates the court decision. Now someone could challenge the constitutionality of the new law in court … if the court deems the law unconstitutional, then the legislature could amend the state constitution too. When the federal government has created a regulation, you’d need to be talking to your federal rep and senators.

Proof of Concept

Reading about the meat processing that’s been attacked by ransomware, and thinking about the petrol pipeline … this really seems like proof of concept stuff to me. I’m sure there’s some ‘making money’ and more than a little ego stroking involved. Before we purchase and implement some major system at work (or spend a lot of time developing code), we run a proof of concept test. A quick, slimmed down implementation that runs on some virtual system that lets people see how it’ll work without sinking the time and money into a full-scale implementation. If the thing seems useful, then we buy it and have a capital budget for implementation. If it wasn’t useful … well, we lost some time, but not much.

Attacking small players in various industries to see what kind of impact you have have … seems a lot like a proof of concept series of attacks. How well secured was the company? What kind of incident response were they able to mount? How much access did you manage? What came offline? What was the public impact?

On Race Norming

I get why race norming is objectionable — but why in the world are they norming at all?! I’d hate if I had some accident & the analysis of my decline was based off of some American norm or a global norm. It’s not like “getting a bunch of concussions” is a black swan event for footballers, either. So why wouldn’t they routinely administer these cognitive tests for each player? Someone puts in a claim? Their current cognitive functionality isn’t compared to some normalized baseline. It’s compared to their documented trajectory.

Socialized Medicine

What really gets me is that the US has socialized health care. Your insurance company isn’t logging all of the excess income they make from you to a large medical expense you incur in the future. The whole point of insurance is that the million (or whatever) ‘customers’ all pay in their their, say, thirteen grand a year. Many people get their annual checkup, and that’s it. Insurance company pays out a couple hundred bucks from that thirteen grand. Someone gets heart surgery – the excess all those only-checkup people paid covers it, and the insurance company pays out fifty grand for that stranger’s medical care.

The American insurance system is just socialized in small, less efficient islands. Those islands are making money off of us all. And you get voted off the island when you lose your job.

Oh, and people still go bankrupt from medical expenses. Or resort to airing their sad story on GoFundMe hoping for donations. I guess we all get to feel benevolent when we donate to their fundraiser, and just paying taxes doesn’t get to make you feel like you’re personally helping someone. But do we really need a profit-driven and inefficient solution just so we can feel good about ourselves? Maybe we could switch to a more efficient system where everyone is the customer pool and the insurance company is looking to more or less break even. And you can donate the money you save on heath care to some other charity — homeless people, bail projects, food kitchens, abused animals, etc.

LARPing the Trial

I wish live action role playing were permissible in jury trials. As we’ve been watching the Derek Chauvin trial, the defense presented body worn camera video from a 2019 traffic stop that involved George Floyd. The retired police officer testified that Mr. Floyd was not following instruction and such … then they rolled the video. Dude goes up to the car and yells something like ‘show me your hands’. Mr. Floyd raised his hands in the air. The officer then repeatedly yelled for him to both “unbuckle your seat belt” and “show me your hands” … two contradictory commands. The officer then ordered Mr. Floyd’s hands on the dash and the officer on the other side of the car ordered (him? the driver?) to put their hands on their head. The officer then shoves Mr. Floyd’s hands to the dash. This doesn’t seem to be someone refusing to follow instructions — this seems like someone trying to follow instructions while two different people shout two different directions.

What’s that got to do with LARP’ing? Well — imagine if you were on the jury and jurors were paired up. Each sat in a chair six feet apart (which is more distance than provided in a car) while two people with guns drawn march up behind them and start yelling orders to them. How well do you think you’d do at following the instructions from the guy closest to you?

Does it now seem more reasonable to say things like “I don’t want to get shot!”? And, since it’s a demonstration, you know the guns aren’t loaded. I’ve had a gun waved in my face exactly twice in my life — once when I took too long to pull over on a traffic stop. The second when I was visiting a friend at work and someone decided to rob the joint. In both cases, it was incredibly frightening. The cops, in the second instance, were somewhat bemused by the fact I couldn’t tell them a single thing about the suspect but could have spent an hour detailing the gun.

Inverse of Citizens United

Representation in the federal government is not equitable — I’ve talked before about how some Senators and Reps represent a lot more people than others. Citizens United farther eroded the influence individual citizens have on the government. But, this past week, I’m beginning to wonder if corporate influence might not force policies supported by a statistical majority that cannot gain enough of a majority in Congress or the Electoral College to have impact.

Businesses don’t care what a thousand acres of land thing. Generally speaking, a company doesn’t consider 280k people in Wyoming as important as 18.6 million in Cali. So, while both groups of people have one Senator … a company looking at losing 18 million customers is a lot more apt to act than one looking at losing 280k customers. Now, obviously, a company would rather avoid conflict and keep both sets of customers. But … if the majority begins to consider inaction offensive? Corporate influence might force a more equitable position for the national majority.

GA SB 202

This particular component of GA SB 202 seems to beg for civil disobedience — first of all, are they really going to throw five hundred people into county jail for handing out water?! What if it’s medical professionals handing out water to prevent dehydration? It wasn’t a gift, it was a prescription for 250cc of water administered orally. Can you bring drinks for friends? The first time Obama ran, I stood on a long queue with friends. One friend ran over to Starbucks and picked up coffees and ice teas for us all. Would that be illegal under this law?

But, more importantly, the law precludes giving of gifts that include food and drink. Can you sell food and water for a penny? Can you barter with food and water? Trade that paperclip/pen/coupon (whatever detritus you’ve got in your pocket or purse/wallet) for a bottle of water?