Issue #131, September/October 2003

The Fight Over Low-Income Housing

A first-person account by the Cuyahoga Falls nonprofit developer at the eye of the storm.

By P. Gilbertson Barno

In 1995 Buckeye Community Hope Foundation decided to build a 72-unit tax credit apartment complex in Cuyahoga Falls, a city with a population of roughly 50,000 situated between Akron and Cleveland, OH. Buckeye discussed its plans with the city’s mayor, Don Robart, who welcomed the planned development as a means of addressing his community’s need for affordable housing. With the comfort of the mayor’s support, Buckeye applied for and was awarded tax credits and grants for its apartment development.

And then the fun began. If you can call it that.

Although Buckeye had paid a premium to buy land that was already properly zoned for its planned development, the city requested that it build an eleven-foot-high barrier wall costing $75,000 (that was not mandated by the zoning code) to separate Buckeye’s land from an adjoining condominium property. The planning commission also requested that Buckeye change the name of its development from “Cuyahoga Terrace” to something that sounded to them less redolent of a public housing project. Everyone agreed to “Pleasant Meadows.”

After reaching agreement with the planning commission, the next stage was a public hearing process. Hundreds of angry citizens crammed the hearing room to protest Buckeye’s planned development. Some questioned the development’s impact on schools and emergency services – matters that are certainly within the purview of public inquiry when zoning is being enacted, but which, one would think, should be irrelevant once a developer has purchased land in reliance on the extant zoning and has submitted a conforming plan for its use.

Some citizens claimed to know “what kind of element” was going to move in – it would be “just like Prange Drive,” site of the city’s only concentration of minority residents. They worried that residents would be playing loud “boom boxes,” and wondered if residents’ children would “shut up right at dusk.” It was about this time that Buckeye learned that for decades Cuyahoga Falls has been known as “Caucasian Falls.” One opponent of the development suggested that Buckeye’s president be thrown “out of the window,” and another followed him to his car to write down the license plate number. Despite this clear evidence of public sentiment, the planning commission approved Buckeye’s site plan. In truth, they had no real choice since the site plan met or exceeded all of the city’s zoning requirements.

Under the city’s rules for land development, the planning commission’s approval required ratification by the city council and another round of emotion-filled public hearings ensued. During the hearings Mayor Robart suddenly transformed himself into the leader of the opposition and compared the housing tax credit program to forced busing. It was also at one of these city council hearings that the word “referendum” was first uttered in a non-sequitur response by the city’s law director to a citizen’s question that had nothing to do with a referendum. But the seed had been planted, and soon the “Citizens for the Preservation of Voters Rights” (a name suggested by Mayor Robart) was meeting to plan a challenge to the city council’s expected ratification of the planning commission’s decision.

Meanwhile, city officials were trying to find a way out of their dilemma. Some city council members approached Buckeye with a proposal to resolve the dispute by trading the Pleasant Meadows site for land owned by the city. Since tax credit awards are site specific, Buckeye was unable to accept the city’s proposal. Besides that, trading prime land already zoned for multifamily use in return for an active landfill didn’t seem like a particularly fair trade.

City council members looked for a “legal shred” upon which to deny Buckeye’s site plan approval. Some talked about having trudged through “six inches of mud,” only to find that the muddy area they had explored was too small to be classified as wetlands. Another council member sent a memorandum to the city’s law director asking if there was any way the council could legally reject Buckeye’s site plan and if a referendum could be used to overturn the council’s own action.

Eventually, the city council voted to ratify the planning commission’s approval of Buckeye’s site plan. The Citizens for the Preservation of Voters Rights then began collecting signatures on a referendum petition to repeal the site plan approval ordinance. Since the approval is based on a technical analysis of a site plan’s conformance to a zoning code, it seemed inappropriate to have the question decided by voters who had likely neither seen the site plan nor read the zoning code. So Buckeye filed a declaratory judgment action in state court as soon as the referendum petition had been filed and its signatures deemed sufficient.

The question before the court turned on whether a provision in Ohio’s Constitution limiting the right of citizen referendum to legislative (as opposed to administrative) matters was trumped by another constitutional provision granting home rule powers. The elected trial judge, whose courtroom was filled with a throng of agitated voters, found nothing wrong with allowing the electorate to make a decision for which they appeared singularly unqualified. He upheld the referendum.

So did the state Appeals Court, which was in turn affirmed by the Ohio Supreme Court in a 4-3 decision. Buckeye then filed a motion for reconsideration, which was supported by requests from several influential groups to file friend-of-the-court briefs on Buckeye’s behalf. This show of support and their undeniable arguments induced one justice to change her vote. Buckeye’s loss was suddenly transformed into a 4-3 victory.

Pleasant Meadows would be built, provided that Buckeye could re-assemble a financing package to replace the tax credits and grants that had been lost due to the delays of litigation. Since the delays from the state litigation promised increased construction costs as well as significant outlays for attorney’s fees, and since it appeared that the city’s actions had also implicated federally protected rights, Buckeye had filed a claim for damages in Federal Court while its state appeal was pending. The complaint alleged violations of Fair Housing laws, equal protection and due process. (See sidebar.)

By joining the Ohio Department of Development as a nominal defendant in the federal action, Buckeye was able to negotiate a change in the state’s tax credit allocation rules that resulted in the issuance of non-competitive tax credits to remedy the city’s actions in stopping the development. As a result, the remainder of the financing package was quickly replaced and construction was begun. Pleasant Meadows was completed late in 2000 and has operated since that time without any major complications. As a matter of fact, the Akron Beacon Journal ran a feature story in 2002 that highlighted how none of the horrible consequences predicted by the development’s opponents had come to pass.

But meanwhile, the federal case progressed while the state appeals process was unfolding. In a move that seemed like a good idea at the time, but which later turned out to be disastrous, Buckeye secured agreement from the city and the federal judge for an order delaying official certification of the referendum vote (which, unofficially, Buckeye had lost by a 3-to-1 margin). Buckeye also requested an injunction against the stay of its site plan approval that had automatically resulted from the filing of the referendum petition. Interestingly, the director of the city’s own planning department testified at the injunction hearing that there was no rational basis for denying the site plan approval. However, the injunction was denied because Buckeye was unable to show irreparable harm.

Aside from dismissing Buckeye’s case against Mayor Robart in an individual capacity, the federal judge denied the city’s request that the case be dismissed. Just before the trial was scheduled to occur, the Ohio court rendered its decision on reconsideration, and the federal judge requested that the parties submit briefs assessing the impact of the state decision on the federal case. While these briefs were being considered, the federal judge retired.

The city asked the replacement judge to dismiss the case on the same grounds that had been rejected by the original judge. However, the new judge saw things differently than his predecessor, and granted the city’s request. Buckeye appealed, and the 6th Circuit U.S. Court of Appeals reversed the dismissal. The city appealed to the U.S. Supreme Court, which agreed to hear the case.

The Supreme Court, by a 9-0 vote, reversed the Court of Appeals, finding that the city could not be held liable for the racially discriminatory actions of its citizens, even if those citizens were city officials supposedly acting in their private capacities. The court seemed to place particular emphasis upon the fact that the referendum vote had never become official (because of the agreement to withhold certification of the vote), by which it held that there had never been any “state action” upon which to find the city liable.

Golf is a wonderful game, teaching many lessons that are applicable to life in general. One such lesson is that there are times when the only thing left to do is to take the ball out of the cup and move on to the next hole. So it is with Buckeye, which has returned to its role as Ohio’s preeminent nonprofit developer of affordable housing following a three-year development hiatus that resulted from the city’s actions.

In the final analysis, the most significant impact of the Buckeye case may be that there are 72 families living in affordable apartments in Cuyahoga Falls, apartments that would not exist but for Buckeye’s fight. Let us all hope that the citizens of Cuyahoga Falls who opposed the Pleasant Meadows development find it as easy to live with their consciences as they have with their new neighbors.

P. Gilbertson Barno is the executive director of Buckeye Community Hope Foundation, 1183 Essex Ave., Columbus, OH. 614-291-0838 or gbarno@aol.com.

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