Impending zoning approval for a large Corporex development in Erlanger served as the starting point for a discussion about public comments and public hearings at this week’s Erlanger City Council meeting.
Much of the exchange centered on balancing residents’ ability to speak about public issues with the need to adhere to legal protocols regarding the introduction of evidence into the public record.
The Tuesday night meeting where this occurred was a caucus meeting, meaning the council did not vote on anything. No members of the public spoke about the issue either, but Council Member Tyson Hermes said, “If people show up to speak on this, we should definitely listen to what they have to say. We should give people an opportunity to speak.”
The development is a 450-unit apartment complex. The land for it spans parts of both Erlanger and Crescent Springs, although the zoning in question is located in Erlanger.
The Kenton County Planning Commission recommended the developer’s zoning change request on Oct. 2, sending final approval back to the city council, which has the freedom to either confirm or reject the planning commission’s recommendation.
The land is about 46 acres and is located on the north side of Dolwick Drive, which itself is near the interstate. A tiny portion of the land, less than an acre, crosses over into Crescents Springs, but only the roughly 45 acres in Erlanger were before the planning commission this week. Turfway Road is to the west, and Crescent Springs Road is to the east.
Corporex has owned the land since the 1980s and sought to change its current business park zone to a multi-family residential zone.
The preliminary development plan presented to the planning commission calls for the construction of 450 apartments and 550 parking spaces. The site is currently vacant and heavily wooded, but has been graded for development.
The planning commission also voted to recommend removing a requirement for detached garages in multi-family residential districts, a move that will facilitate the development.
The plan calls for the construction of six, four-story buildings, each with at least 60 units (the larger buildings have as many as 90 units). It has one access point on Dolwick Drive. Other amenities in the plan include a swimming pool, tennis courts, a hiking trail and a clubhouse.
Correspondence between county professionals and Corporex, submitted to the planning commission, indicates that the units would be of varying sizes, with market-rate rents ranging from $1,500 to $1,900 per month.
The council will perform a first reading of the zoning change in November.
Even though Hermes was the one who brought up the question of speaking, he and the other council members didn’t explicitly come out in favor of or against the change at the meeting, except Council Member Jennifer Jasper-Lucas. She was in favor of the change “because multi-family housing is desperately needed in our area.”
Zoning changes can be somewhat of a slow process. During this time, public hearings are carved out for residents to weigh in and submit information to the planning commission and the city, either in favor or against a change request.
Public hearings are meant to be official, designated times wherein people can submit their evidence. Cities can call their own public hearings in addition to the public hearings at the planning commission, but simply allowing people to speak at a normal council meeting about a zoning change can be legally risky, argued City Attorney Jack Gatlin.
“Where you get into a lot of issues and potential litigation is if you go outside of the public hearing and allow new evidence,” Gatlin said.
Why would this pose a problem?
Zoning changes are often made at the request of a developer with the expectation that public hearings will take place at set times. Public hearings require cities to send out special notices.
That way, everyone is informed that these events are going to happen and that new information could be submitted into the public record. If a city government allows the introduction of new evidence outside of a designated public hearing, then that could – arguably – breach the due process afforded to a developer making the request.
“Let’s say a developer assumes that the only public hearing – which is what the statute says – was at the public hearing through [the planning commission], but then Council is listening to 15 to 20 other people, including maybe people from the schools that weren’t at that public hearing, that maybe have a different opinion; that’s that’s not providing adequate due process to that developer,” Gatlin said.
Again, cities can set up additional public hearings outside of the public hearings, but discussion tapered down after this, and there was no motion from the council to set a new public hearing.