Council, planning commission debate potential ordinance

NORWALK — There was a spirited discussion at city council on whether or not zoning notices should be mail by certified or first-class U.S. mail. Currently under city ordinances, when a zoning change could occur, everyone in a 300-foot radius of the property must be mailed a notice by certified U.S. mail. Council proposed legislation that would change the ordinance to send out notices by first-class mail only. The planning commission voted unanimously to not recommend the approval of the ordinance after a Jan. 8 meeting. Council set a public hearing for March 3. Jennie Hipp and Bill Kalf, of the planning commission, attended council's work session Tuesday to discuss the reason for the disapproval. Kalfs, vice chairman of the commission, said their goal is to consider what's in the best interest of Norwalk while accommodating the applicants for zoning changes. "In a civil action, the rules of civil procedure require notice to the parties that have an interest in the action first be served by certified mail and if that fails, then it goes to first-class mail," Kalfs said. "(The new ordinance) could potentially expose the applicant and the city to expensive and protracted litigation." He said the person applying for zoning changes has objected to paying for the necessary notices to be sent out because there are more than 100 parties that would need to be notified. Kalfs said the certified mail notice must be sent out twice, which adds up to $13.70, which is "cheap insurance for the city to avoid any potential litigation." "Our objective is to encourage development but the city shouldn't have to bear the expense of the property developer," Kalfs said. "We're not certain that the (new) exculpatory language would hold up in court. … (The ordinance) currently complies with the rules of civil procedure." Council president Steve Euton said he can understand the legal protection that certified mail offers. "Certified mail requires a signature and that would then prove that we mailed and it was delivered whereas first class there is no proof that it was mailed delivered," Euton said. Law director Stuart O'Hara said the rules of civil procedure as they apply to civil litigation have no application in zoning issues. The Ohio Revised Code states that notices for rezoning be mailed out by first class mail. O'Hara said he believes Norwalk would be protected by law, even if it used first class. "The feeling of the administration was that by changing form the certified mail to the first-class mail that we can speed up the process, we can lower the cost to people who are coming in to do business in the city of Norwalk who might wish to change zoning," O'Hara said. "We don't have any significant increase of risks for the city." Council and the administration discussed whether or not the planning commission wanted to continue the discussion about the potential legislation. "If we were those homeowners … we would want to be notified properly," said Hipp, the commission chairman. "We tried to look at it from our perspective as well as a legal perspective." Euton said council wanted to change the ordinance to ensure the citizens being impacted will be communicated effectively and that the city is protected from risk and liability. "I understand that this change appears to be presented because of the size of the property. I don't think that's relative to that discussion," Euton said. "It has to do with protecting the citizens and protecting the city from lawsuits and residents making sure that they are notified." Councilman Jordy Horowitz asked if there would be a way to guarantee the city sent out notifications when using first class mail. O'Hara said the state uses a list of those who were sent mail as a "proof of service." Kalfs asked why council decided at this time to change from certified to first-class mail. "With this particular piece of property being rezoned, it was brought to our attention how this much does add up to," O'Hara said. "We can provide some relief for people applying for zoning changes."