Monday 22 Aug Council Voted to Approve a new Development Plan
Let's make sure we know what we are committing to!

This new development plan the council will vote on Monday deals with the property near Meyer.

Picture derived from Exhibit B of Council agenda item 6B pg 6

What concerns me about this development plan is that the public has been kept from the details until Friday when it was published as an agenda item for approval at Monday's council meeting.  The details are involved and in legalize.  Honestly, I skimmed through them once and I am not sure if I will have time to read them for comprehension before tomorrow's meeting.  

Obvious points to ponder and questions to ask.  

1. This development plan talks about using TIF funds.  We know that council has committed all the identified TIF revenues in order to pay for phase 1 of the Aquatic center and that they have told the public they intend to use the next $2 million dollars in order to undertake phase 2 of the Aquatic / Recreation Complex.  What TIF funds are they going to use in this development plan?

2.  The city has been using reserve funds to pay for this and last years expenditures.  The city's financial officer mentioned in open committee meetings that those reserves will likely be exhausted by the end of next year.  These TIF funds can not be used to pay for Fire and Police protection but they can be used for other capital expenditures such as water and sewer.  Instead council keeps revisiting how much of the water and sewer reserves can be expended to help pay for the Aquatic Center.  If council hasn't used all the TIF money for the Aquatic Center would it be smarter to see how that money could be used to ease the burden on general funds in order to ensure council doesn't have to go to the citizens and ask for more tax revenues?

3.  When the city prepared the Resolution Adopting A Tax Budget For The Year 2012 during the July 25th council meeting there was an attachment that included the city's outstanding bonds.  If you look at the outstanding bonds you see it includes at least 11 bond issues that by their title deal directly with Carriage Trails, Executive Boulevard, and Shull Road and these items already add up to more than half the outstanding bond debt of the city.

Click on image to see details. 

Development Plan agenda item

Ordinance

201/202 CORRIDOR DEVELOPMENT AGREEMENT

Exhibit B

I end with the way I started.  If you can read the documents and offer intelligent questions to ask council, come to Monday's meeting and get on the schedule to speak. 

Update:  25 Aug 2011 

Council approved the development plan on Monday as reported in Thursday's Huber Heights Courier.  I was so concentrated on looking for the Aquatic Center YMCA contract and then trying to figure out the details of this development plan I missed that they changed the time for the meeting to 5 pm.  Normally the video of the council meeting is posted the next day but it wasn't there as of Wed evening. 

I did read much more of the plan by Monday's meeting but still was not able to get through it all.  The crux of the plan is Corridor 201 LLC is going to do a projection on how much property tax (TIF money) would be generated if business would locate on the property.  Then the city will borrow that amount of money.  Somehow the city will end up buying a portion of this land and then build roads and sewer on the property.  After that the developer will build the business in order to generate the TIF funds to pay back the loans. 

First let me say that this kind of plan is more in line with what I believe the TIF funds should be used for than the Aquatic Center.  The next thing I can't give you a good indication if this is a proper deal because I still have read only about 3/4 of the document for comprehension.  For instance the document keeps telling us that the city will build sewers and roads but I haven't discovered where it tells us the location or how many.  Then in section 7 it tells us the developer will build all roads and sewers except for the ones the city will build.  It is impossible to tell how much obligation this is the city.

I have a few other items I would have brought up in the council meeting:  Section 6.7 tells us the city agreed to keep us in the dark as much as they possibly can legally. In Section 4.3 it mentions the Aquatic Center but we don't know if phase 2 of the Aquatic Center has priority over the rest of this project or just phase 1 (Phase 2 seems to be a part of this project).  Section 5.2 seems to tell us the city has to start the land acquisition process as soon as possible.  Then there were missing parts from the web page.  For instance Exhibit A showing parcels was not included.  

I'm sure there are more and I'm looking forward to the Aug 31st Administration meeting to see what further details will be discussed.  Also on that agenda is a Recreation Facility Planning item.  I suspect this will deal with the YMCA going on contract to run the Aquatic Center.  

The Huber Heights city council consistently holds all property purchase discussions in executive sessions.  Because of this the citizens of Huber Heights do not get informed of major city expenditures such as the Aquatic Center until all the major decisions have been made and it is almost impossible for the public to contribute to making these projects better.  On Monday the council will do this again with the Development Plan.  

I read Ohio's Law that tells us what types of meetings can be held in executive session (R.C. 121.22(G)(2)).  There is a provision in there concerning the purchase of real property.  It is obvious from reading this provision it is not meant to keep the public from providing input to important projects like the Aquatic Center or this new Development Plan.  It has bothered me since I read the law a couple months ago.  When council used this provision Tuesday I finally asked for their reasoning.  It turns out that they were basing their interpretation of the law on the Sunshine Manual that is published by the Ohio Attorney general.  When I read this guidebook I could see why the council could believe they were in compliance with the law.  Reading the two I wondered how there was such a disconnect so I used the online form and asked the Ohio attorney generals office and I actually got a reply.  I'm going to end this article by copying the reply but before that I'll copy the law, the guide language and then tell you how I interpret them.  This will include why the council's behavior is contrary to the law and it will include why the guide does not accurately reflect the law.

You can find the rules for going into executive session on the Ohio Lawriter Website.  The language for the purchase of public property can be found in R.C. 121.22(G)(2) and reads "To consider the purchase of property for public purposes, or for the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. No member of a public body shall use division (G)(2) of this section as a subterfuge for providing covert information to prospective buyers or sellers. A purchase or sale of public property is void if the seller or buyer of the public property has received covert information from a member of a public body that has not been disclosed to the general public in sufficient time for other prospective buyers and sellers to prepare and submit offers."

In the Sunshine Manual this passage is addressed as follows.  "

A public body may adjourn into executive session to consider the purchase of property of any sort-- real, personal, tangible, or intangible.  A public body may also adjourn into executive session to consider the sale of real or personal property by competitive bid if disclosure of the information would result in a competitive advantage to the person whose personal, private interest is adverse to the general public interest.   No member of a public body may use this exception as subterfuge to provide covert information to prospective buyers or sellers.

The first problem with the manual is that it splits the first sentence of the law up incorrectly.  The manuals first sentence makes it seem like the government body can go into executive session just because they are considering the purchase of property.  When in fact the if statement of the law applies to the first statement as well.  That is the first sentence of the manual should read 

A public body may adjourn into executive session to consider the purchase of property of any sort-- real, personal, tangible, or intangible if disclosure of the information would result in a competitive advantage to the person whose personal, private interest is adverse to the general public interest.

For those of you that are not English majors this is determined by where the commas are found within the law.  The if statement would apply only to the second part of the law if there wasn't a comma before the if statement.  For instance lets suppose we only wanted to write the law so that it only allowed the second condition.  We would not write, "For the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest."  The comma after bidding is not grammatically correct.  The comma in the current law only makes sense if it is meant to show that the if statement belongs to both of the conditions that precede it.  

The other part of the manual that is flawed is the omission of the requirement to reveal the details of the purchase "in sufficient time for other prospective buyers and sellers to prepare and submit offers" This omission and council using this manual as their guide to the law has led to council keeping the details of major projects from the public until it was too late to help the council improve the project.  For instance the Aquatic Center.  There are many aspects of this project that may have had better options.  For instance there is a piece of property next to Gander Mountain that is advertised at $15,000 an acre for 60 acres.  This is a starting price of $900,000.  Find the details within this advertisement. If that is their starting price then it may have been possible to get it for the same $770,000 council spent to get the 14 acres they did purchased.  This site may or may not have worked for an aquatic center - (it may be too low?) but it would have been a good site to consider; it falls within the TIF district, it is more acres, It already contains a 12 acre pond which could be used to accent the aquatic center theme, it can be seen from the highway resulting in much free advertising, the noise from the aquatic center would not bother the neighbors, it would promote the establishment of commercial properties in an area not likely to be developed soon instead of using up highly desirable property that would otherwise generate revenue for the city.  

Click on Picture for full View

Whether this site would work or not work the point is the general public didn't get the opportunity to have the other alternatives considered because council did not reveal the details until they decided to purchase the 14 acre plot.  And the reason they felt they could do this is because they read the Sunshine Manual and not the actual law. 

Currently, there doesn't appear to be much citizen interest in council business, so I don't know how many other suggestions would have been explored.  However, I do believe the public should at least get the opportunity.  I also believe council improperly blocked this opportunity concerning the Aquatic center and will on Monday do the same thing with the Development plan because they again improperly went into executive session.

This article ends with the inquiry I sent to the Attorney Generals Office.  I follow that with their response.