City warned of possible lawsuit over apt. project

The director of the Athens County Historical Society and Museum has sent a letter to the Athens law director's office, urging Law Director Patrick Lang to block a planned apartment development on Stimson Avenue, and warning that if he doesn't, the city may face an expensive legal battle.

Lang responded quickly. In a letter the same day to Historical Society Director Ron Luce, the law director stated that in his view, the recent decision by the Athens Planning Commission to green-light the apartment project is "legally defensible," despite the fact that Lang's own office advised against it.

"Whether (the Planning Commission's) action was in accordance with my office's advice or not, it was legal," Lang wrote, adding later in his message that "from a legal standpoint, this is not even a close call."

Luce's letter, addressed to Lang and city Chief Prosecutor Lisa Eliason, asked them to "act, pursuant to (state law), or otherwise, to compel the Athens city director of code enforcement to pursue appropriate enforcement."

The section of Ohio law Luce cited in his letter states that if "an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance," a village solicitor or city law director should seek a court order to compel it to do so.

The subject of Luce's letter is a project planned for 22 W. Stimson Ave., now the site of the BellaVino beer-and-wine store. Developer Ric Wasserman is negotiating to buy the site, tear down the BellaVino building, and replace it with a larger building containing apartments for 18 tenants.

Luce has spoken out vehemently against the plan, largely based on the fact that the building is a former stable used by the Athens brick industry, and is more than a century old. He has also argued, however, that city zoning code clearly does not permit the plans Wasserman has submitted to be realized in a B-3 general business zone.

Wasserman's plans call for the ground floor of the building to be a parking garage for tenants. City code requires that in a B-3 zone, buildings can have residential uses above the first floor, but the first floor must be a commercial use. Wasserman argues that the parking garage qualifies as a business, and city Code Director John Paszke essentially agrees with him on this issue.

Lang's office has told the Athens Planning Commission that it believes the parking lot does not meet the code requirement as a business. Despite this opinion, the commission on Jan. 11, by a three-to-two vote, approved the project as meeting code requirements.

Paszke has said that the code explicitly names "parking" as a principle permitted use in a B-3 zone; therefore, he apparently reasons, a parking garage connected to an apartment building can meet the "business use" requirement for the ground floor of a B-3 building.

Luce has not filed any legal challenge to the project in Athens County Common Pleas Court. In his letter, however, he warns that if Lang's office does not take action to block Wasserman's project, "I have no choice but to move forward with a citizens' suit."

This might conceivably take the form of a so-called "taxpayers' suit," which allows a taxpaying citizen to sue a public officer, board or commission based on the allegation that public funds have been misused or the government body has not done its job properly. Another legal avenue would be an administrative appeal of the Planning Commission's decision, filed in Common Pleas Court.

Asking for a "formal response" to his letter within 14 days of its receipt, Luce appended a list of 13 Athens residents he said are willing to sign onto a legal appeal of the Planning Commission's ruling.

They include himself, former City Council member and mayoral candidate Ed Baum, former Athens County Republican Party chair Ellsworth Holden, and former Athens County Recorder Julia Michael Scott.

A MEMBER OF THE HISTORICAL Society, meanwhile, is circulating an email message trying to drum up support to fight the Planning Commission's decision, and stressing the historic nature of the BellaVino building.

The email from Dawn Ruhinen, which was forwarded to The Athens NEWS, urges recipients to "send emails to Athens City officials and express your disapproval of the twisting of the law in the city of Athens so yet another student apartment can be built at the cost of a historic Athens building."

The Athens zoning code states that principal permitted uses in a B-3 zone, with a few exceptions, are the same as in a B-2 or B-2D zone. In the code section dealing with B-2 zones, the code states clearly that "residential uses are permitted only on the second story and above."

The disputed legal question, apparently, revolves around the issue of what uses other than residential can be put on the ground floor in a B-3. The B-2 section of the code allows "any other retail business or service establishment or use," as long as the Board of Zoning Appeals determines it to be of the same general character as those explicitly permitted in a B-2 zone.

A B-3 zone, however, has its own set of additional rules. These include a paragraph that requires all business uses in a B-3 zone to be conducted "wholly within a completely enclosed building," with a few exceptions. The latter include such things as the sale of gas and oil at service stations, loading and unloading operations, and parking.

It is the inclusion of this single word, "parking," in the B-3 code section, that Paszke is apparently relying on to support his opinion that parking is a principal permitted use in a B-3, and therefore an acceptable use on the first floor of a B-3 apartment building.

It is not clear on first glance, however, whether the code section in question makes "parking" a principal permitted use and therefore acceptable as a first-floor use, or simply specifies that it is a use that can take place outside of the interior of a building.

Also, the fundamental question that divided the Planning Commission remains, is parking for a residential use on the upper floors a valid "business" use?