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Wednesday, December 19,2012

Long fight over small apartment project doesn’t look to end any time soon

By David DeWitt

Over the past year and a half a small apartment project on Graham Drive has spurred protests, debates in public forums, one new neighborhood group, one taxpayer lawsuit, two administrative appeals, several appeals stemming from the decisions on those cases, and now a rezoning proposal before Athens City Council.

It's been a long and winding road. The project itself went from an empty lot to a fully constructed and occupied apartment complex. And it looks as some of the remaining issues won't be resolved before summer at the earliest.

At the core of the issue are the apartments constructed at 10 Graham Drive on Athens' far eastside by Integrated Services of Appalachia.

Kevin Gillespie, director of Integrated Services, issued a statement this week saying that the kind of legal action triggered by Graham Drive Family Housing is not uncommon in the state and across the nation.

"The details of routine zoning and planning process are often used as a technique to challenge communities as they conduct their everyday affairs while at the same time meeting their responsibilities to ensure fair and affordable housing," he stated.

A single lot, four-residence structure was built on the site to provide housing for citizens who receive services from Integrated. The non-profit corporation works to alleviate homelessness for those with disabilities and/or mental health challenges.

Joe Maskovyak, a staff attorney at the Ohio Poverty Law Center, who had been contacted by Integrated about the situation in Athens, was a little more straightforward about what's been happening on this issue.

"They've developed a term for it: NIMBY (not in my backyard)," he said in an interview Tuesday. "What usually happens is that the citizens' groups get motivated and they move to try to get government at some level to do their dirty work for them."

In this case, Maskovyak said, the Athens Board of Zoning Appeals and Planning Commission were contacted by the group that became known as the SAFEST Neighborhood Association to have concerns registered against the project on Graham Drive.

"Because they failed (to persuade the BZA and planning commission to not allow the project), they had no choice but to go to court to seek recourse," he said. "Usually courts bend over backwards to uphold what government actors do. In this case, that did not happen."

SAFEST Neighborhood founder Jeff Dill, on the other hand, sees his mission as holding government accountable to its own laws and regulations.

In an interview Tuesday, he said the judge clearly ruled that the building at 10 Graham is illegal, and the city broke a number of their own rules in approving it in the first place.

"In fact, we pointed out chapter and verse what was wrong and why the building was illegal months before constructions started. And they chose to build it anyway," he said. "And they didn't even bother to try and argue the law, they challenged our standing and said we didn't have the right to challenge their authority. (They said) ordinary citizens don't have that right and government officials can pick and chose which laws to enforce and which ones to ignore."

SAFEST Neighborhood attorney Garry Hunter did not return a phone call seeking comment and Dill declined to say what would be a satisfactory ending for him regarding the litigation at this point, considering the apartments are now constructed and occupied.

"I'm not going to speculate on that. I'm not going to go there," he said. "We asked for an injunction to prevent construction and the judge denied that injunction. But he still made clear they were building at their own risk if they chose to go ahead and build. They knew the risks when they started construction."

Maskovyak said he was challenged to look into whether there were grounds to assert that SAFEST Neighborhood has been promoting unfair housing, as the disabled are protected under national fair housing standards.

"I didn't think there was a smoking gun," he said. "Could I see that what they were saying was code and cover for a NIMBY attitude? Yes. But could I say that this was actually their attitude? No, because I don't know the character of the people involved."

Legally, though, Maskovyak said, citizens have First Amendment rights to voice their opinion regardless of how that opinion relates to fair housing standards.

Visiting Judge John D. Martin supported the arguments made by Hunter and the SAFEST Neighborhood group in his ruling on the two administrative appeals filed by them. His decision is now being appealed by Integrated and the City of Athens.

Martin wrote that the duty of the court is to determine if the zoning board's order was "unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable or probative evidence."

"In its rush to grant the appellees permission to proceed with the project, the court finds there to have been a number of instances where the provisions of the code to have been exceeded or simply ignored by the board," Martin wrote.

Meanwhile, he called the hearing before the Planning Commission "perfunctory at best," and said that while hearings at that level are informal, the commission has an obligation "to examine more than a mere sketch of the proposed project and to accept without question matters such as parking and the objectionable nature of the changes being sought.

"In not meeting this obligation, their decision cannot be said to be supported by a preponderance of substantial, reliable and probative evidence," he concludes. "It's arbitrary and unreasonable, and the board's reliance on it was equally so."

Gillespie on Monday took issue with the notion that parking was a matter of concern. Pointing to the facility across the street from his offices at 11 Graham Drive, he noted that there are a full 12 spaces and most of them were at that moment unoccupied.

"We tried to make this thing as beautiful as we can make it," Gillespie said. "We're not just throwing up rentals. We tried to make this fit and we have."

He said that the apartments' being up and occupied has alleviated many of the concerns of neighbors who were initially fearful of the unknown.

Meanwhile, Betty and Timothy Sexton and Clarice and Albert Squibb, residents of the neighborhood in question, brought forth a proposal that has now been passed along from the Planning Commission to Athens City Council to rezone a portion of the neighborhood to maintain its single-family, owner-occupied nature.

That proposal has already been negotiated to relieve concerns of business owners in the area, who feared that their businesses would suffer if rezoned. The new maps do not rezone any businesses.

Not all concerns have been addressed, however, as attorney Bill Walker, who represents some other property owners in the area, has raised some issues regarding feared devaluation of those owners' properties.

Nevertheless, City Council members expressed hope that with further negotiation a point could be reached where everybody is reasonably happy.

Fourth Ward member Chris Fahl, who represents the neighborhood in question, said that council could amend the proposal and possibly pass it, or ask the planning commission to reconsider.

"I think it's not finished until the last vote gets taken," she said. "I think most things get to that happy spot sooner or later. It sometimes takes a while. There are issues and such that neighbors have over there and we're trying to look at those planning issues. As always, planning and zoning is a continually evolving thing."


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"They've developed a term for it: NIMBY (not in my backyard)," he said in an interview Tuesday. "What usually happens is that the citizens' groups get motivated and they move to try to get government at some level to do their dirty work for them."  Perfect quote for what we see in this situation and several similar other situations in OUR community.  For a bunch of "smart growth types", our town sure does have a lot of elite who don't see the value of helping the mentally disabled and homeless.  I guess giving that kind of help just isn't "Smart" enough.  The apartment complex is beautiful.  Keep up the great work Integrated!



Don't see that there has been ANY problems since it's been built.........what's the big deal???



The article states that Maskovyak said: "Could I see that what they were saying was code and cover for a NIMBY attitude? Yes. But could I say that this was actually their attitude? No, because I don't know the character of the people involved."   Seems to me that if the answer to the second question is "no, because I don't know their character," only irrational pre-judgement would answer the first question "yes."

Among the things not reported by the News in regard to Council's December 10 meeting was a discussion of buffering between zones. Had Mr. Gillespie's parking lot used appropriate landscaping buffering, it would probably be less offensive to the neighborhood. The Planning Commission also glossed over this aspect. Integrated crammed the parking lot as far as possible towards the single-family neighborhood, completely insensitive to its impact on neighboring lots. Integrated also made no effort to get any neighborhood input in regard to the proposed changes. Of course, the combination of business parking lot and housing units is too much for one lot anyway.



Mr. Gillespie, your comments are of the lowest form, fomenting divisiveness, creating class warfare, casting aspersions on the motivation and character of residents and minimizing the actual issue, that the Board of Zoning Appeals and Planning Commission circumvented the law either knowingly or out ignorance but none the less illegally. 

You sir, not SAFEST, continue to portray citizen's motivations as being opposed to helping those with mental health and substance abuse challenges. Your energy would be better spent lobbying the Planning Commission and City Council to amend the zoning code to create a place for those with special needs that require specifically tailored housing assistance. Contact Keith Wasserman at GoodWorks and perhaps the two of you might get the planning powers to be off dead center to address the problem. Please, no more demeaning the good character of far east side residents.........please



oh by the way Mr. Gillespie, nice touch by taking out the half page ad for Integrated Services on the back of the print edition of the ANews. Welcome to the brave new world of the commercialization of outsourced public health services. Really, it's not all about the money, it's not..........just trust me on that.