August 14, 2003

Caboose owners call decision on lease ‘unjust’—
Council to limit Caboose’s business

Last week Village Council reinforced its decision to amend the Village’s lease with Caboose Bike & Skate by approving a resolution that says the Village will limit the scope of the business to rentals.

Chris Roberts, who owns Caboose Bike & Skate with her husband, Doug, called Council’s decision “unfair, unjust and unreasonable.”

The Roberts said that they are considering taking legal action against the Village for violating their lease, a 10-year agreement the Roberts renewed with the Village in 2000 allowing them to operate their business out of the two yellow cabooses the Village owns.

“I think that they have violated their contract with us,” Chris Roberts said of Council. She added, “You can’t change your contract because you changed your mind.”

In a way, Council’s decision, which it made at its meeting Aug. 7, simply reaffirmed a step it took last month, when Council members instructed Village Manager Rob Hillard to bring Caboose Bike & Skate’s lease “into compliance” with a measure passed by a previous Council in 1986, by restricting the business to rentals.

Last week, Council approved 4–0 a resolution authorizing Hillard to seek permission from agencies at Greene County, the state of Ohio and the federal government to allow the “continuation of rental of skates and bikes from the cabooses in the public right-of-way” of the bikepath. The resolution states that the Village will amend the lease with Caboose Bike & Skate and that the Roberts will have “the opportunity to continue under the amended lease if they so choose.”

Council president Tony Arnett called the approval the first in a series of actions the Village must take that follow the direction Council agreed to last month.

Arnett said that Council decided to limit the Caboose’s scope of business to rentals because “we have every reason to believe that will not be challenged by any of the various parties that have spoken on this.”

It’s unclear whether Arnett’s comments included the Roberts, who indicated that they might fight the Village’s decision. When asked whether the “various parties” he was referring to included Caboose Bike & Skate, Arnett said, “We’ll see.”

He said that Council believes that the Roberts “certainly want to be doing business.” Council member George Pitstick added that the Caboose’s “other choice is no business.”

Last month, Chris Roberts said that limiting the Caboose to only rentals is “unacceptable,” and that the business cannot survive on its rental profits alone.

Council is concerned that Caboose Bike & Skate’s lease conflicts with a 1986 resolution approved by Council stating that the Village was interested in working with the state to construct a bikepath in Yellow Springs. That resolution says that “roadside stands and other private installations” are prohibited within the bikepath right-of-way.

In 1991, the Village agreed to rent the cabooses to Selwa Whitesell and Doug Roberts, and Whitesell and Roberts agreed to renovate the cabooses, which the Village had received free from Wright-Patterson Air Force Base. At the time, the cabooses were in disrepair, Whitesell said in an interview Sunday, and she approached Kent Bristol, the Village manager at that time, about opening a skate business in the structures.

In May 1992, Whitesell and Roberts signed a lease with the Village to rent the cabooses for three years, at no charge, in exchange for restoring the cabooses. In 1995 and 2000, the Village signed two more leases with Doug and Chris Roberts. Whitesell left the business in 1993, saying that she was “forced out” by the Roberts.

All three leases say the business included “sales and rentals of bicycles, roller skates and miscellaneous supporting clothing and items.”

The resolution Council approved last week says that the Village’s “intent” when it agreed to lease the cabooses to a business was for “the rental of skates and bikes, as an amenity” to the bikepath.

In an interview last Friday, John Chambers, the Village solicitor, said the Village has concluded that “we have a lease in violation of the covenants that the Village agreed to” in 1986. He said that the Village has a “number of options available” to rectify the dispute, and that it was Council’s decision to limit the scope of the Caboose’s business.

Chambers declined to answer a question about whether Council’s decision violates the Roberts’ lease, saying that he would “reserve comment for another time.”

In 1991, Joe Lewis, who was on Council then, raised similar concerns about the Caboose lease. According to a Sept. 19, 1991, article in the News, Lewis said that the Ohio Department of Transportation and Alan Anderson, the Village solicitor at the time, gave their approval for the business. Written evidence of that approval has not been found.

The Roberts and Whitesell dispute the Village’s claim that the cabooses were intended to house a rental business. “We’ve always sold bikes,” Chris Roberts said.

Whitesell’s business plan for the C&O Skate Co., as the company was called when it opened, stated that the business would rent and sell bicycles and skates. A zoning permit Whitesell received from the Village in 1991 says the business will offer “roller skate rentals and sales.” Articles in the News offer conflicting information. Two stories in 1991 stated that C&O Skate was a bike and skate rental business, while a 1992 article on the business said that C&O was “devoted to renting and selling” skates and bicycles.

The business “always intended to do both,” Whitesell said this week, referring to rentals and sales. “I would not have opened a business with just rentals,” she said. “It would not have provided a good livelihood for me.”

Bristol and two local residents who were on Council at the time the lease was first drawn up have said that the Village originally wanted to set up a rental business to complement the bikepath.

In a phone interview Tuesday, Bristol said that he was “careless about how I wrote the lease,” and took what he called a “shortcut” that did not distinguish the scope of the C&O’s business as doing rentals.

The Roberts say that the problem is their business is too close to the bikepath, and is located within the right-of-way. They have an alternative solution to Council’s, saying they would be willing to cut off part of the deck, which comes close to the trail, or alter the trail so it swings wide of the cabooses. Either action, the Roberts say, would place the cabooses out of the right-of-way, making the business comply with the Village’s 1986 resolution.

Ed Dressler, a Greene County park district commissioner and the executive director of the county parks district when the bikepath was built, said that some county officials, including himself, are concerned that the caboose’s deck is “too close” to the bikepath, which, he said, must be kept free of obstacles.

Chris Roberts also proposed that the Village help the Roberts receive written acknowledgment from the federal government, which issued a grant to help build the bikepath, stating that it is legal for the Caboose business to operate on the bikepath.

“We could easily rectify the situation,” Chris Roberts said.

The controversy about the use of the cabooses was first raised by John Spariosu and Marcia Sauer, the owners of Yellow Springs’ other bike shop, Village Cyclery. Twice this year during Council meetings, Spariosu has raised questions about whether it was legal to allow a commercial business to operate on the bikepath. He also said that Caboose Bike & Skate competes with his business.

The Roberts have said that the Caboose does not directly compete with Village Cyclery because they cater to a different clientele.

Chris Roberts also said that Spariosu is trying to “squash his competition.”

On Tuesday, Spariosu said that he brought his concerns to Council’s attention because he had been assured when the Village was negotiating the lease with C&O Skate that the business would not be in the sales business.

Spariosu said that he “never had any problem” with the Caboose business “for the longest time.” But then, he claimed, disputing what Whitesell and Roberts have said, “they went into the bicycle-selling business,” placed new tarps around the property and spread out. “It just got out of hand,” he said.

He said that he had been “trying to resolve this issue without [causing] liability to the Village.”

“I wasn’t out to hurt anybody,” Spariosu said. “I was out to protect my business.”

—Robert Mihalek