February 8, 2007

By Diane Chiddister

Village Council does have the right to say no the the annexation request from owners of the Fogg farm, according to Village Manager Eric Swansen at Council’s meeting Feb. 5, but it must do so carefully to avoid potential lawsuits.

“There are issues,” Swansen said in response to a question from villager Carlos Landaburu, who asked if the Village can reject the annexation request. “Council has to make a decision that does not appear arbitrary or capricious.” Council members need to be careful what language they use in rejecting the request, should they decide to do so, he said.

But Council member Judith Hempfling questioned Swansen’s assessment of the difficulty involved in rejecting the annexation request. Village Solicitor John Chambers, in a conversation with Hempfling, said that rejecting the request is not difficult, and that Council only need to clearly state its reasons for doing so.

“I want to say, we do have a choice,” Hempfling said.

Whether or not Council has the choice to annex the Fogg farm was one of the legal issues discussed at its meeting Monday, Feb. 5. Council members also set the agenda for an upcoming special meeting on the annexation Thursday, Feb. 15, at 7 p.m. in the Bryan Center gym. The meeting was rescheduled from its previous date of Feb. 13.

On Monday Council also heard a presentation on pre-annexation agreements by Village Solicitor Shannon Martin. Pre-annexation agreements are widely used by municipalities to give them more control over potential developments, Martin said.

“They are vehicles which give municipalities flexibility to address their concerns,” Martin said.

For instance, she said, a pre-annexation agreement with Fogg farm owner Doug Miller could designate a percentage of homes built which need to be affordable; could require the construction of energy-efficient homes; or could mandate a common play area for children and/or the construction of a bike path on the development, among other things.

Council requested that Swansen contact Miller to determine his willingness to enter into a pre-annexation agreement. Council members also requested that community members let them know what issues they want covered in such an agreement.

Miller is co-owner, along with Fogg family members, of the 40-acre Fogg farm on the western edge of Yellow Springs, west of Yellow Springs High School. At a special Council meeting Jan. 29, Miller presented his plans, if the land is annexed, to develop The Village Greene, a development of about 210 new homes, including about 150 attached multi-family units and 60 attached single-family units. The development would require the land to be rezoned from agricultural to planned unit development, or PUD.

Pre-annexation agreements are used because rezoning takes place after the final decision to annex. Council has until its April 16 regular meeting to make a decision on the annexation.

In response to a question from Landaburu, Martin briefly discussed the process involved in mounting a citizen referendum on the annexation issue. Community members must mount such a campaign within 30 days after Council makes the annexation decision, she said, although she declined to go into specifics at this time.

“The requirements are pretty rigorous. It needs careful attention,” she said.

On Monday night Council also agreed, after discussion, on an agenda for the special meeting on the Fogg farm annexation to take place Thursday, Feb. 15.

Swansen initially presented a proposal for the meeting agenda, which would include a panel of local experts on the concerns community members have raised on the proposed annexation. The experts would include Home, Inc., Executive Director Marianne MacQueen on the issue of affordability, Smart Growth Task Force members Dimi Reber and Steven Conn on smart growth, Community Solution Director Pat Murphy on energy conservation, Tecumseh Land Trust Director Krista Magaw on green space issues, and Ellen Hoover on economic development. In his proposal, Swansen suggested that the panel of experts dialogue with Council members at the meeting.

While Council members supported the panel, Hempfling and Kathryn Van der Heiden stated that at the Feb. 15 meeting Council members also need to dialogue with the community, not just with each other.

“I would like to see this as the beginning of a dialogue with the whole community,” Hempfling said.

She also encouraged Council to include on the panel representatives for the issues of diversity and a possible referendum on the annexation. However, other Council members disagreed with the need to do so, saying these issues would naturally come up during the discussion.

All Council members agreed to the final agenda, which will include both the panel presentations and dialogue with the community. A facilitator will lead the meeting.

Other business from the Feb. 5 meeting will be covered in next week’s News.

Contact: dchiddister@ysnews.com