AMERICANS WITH DISABILITIES ACT PRESENTATION

A. Overview of ADA Law & Construction
B. Speakers
a. Matt Miko, Esq. – Chief Legal Counsel, Ohio Civil Rights Commission
b. Jan Sokolnicki – Board of Building Standards

CONSUMER SALES PRACTICES ACT – RECENT CASE DISCUSSION

 OHIO HOUSING FINANCE AGENCY

 LEGISLATIVE ITEMS – ACTION LIST

 A.  Impact Fees
 B.  Great Lakes Compact
 C.  SB 78 – Great Lakes Task Force
 D.  Model Planned Community Act
 E.  SJR 1 – Eminent Domain
 F.  HB 5, SB 7 – Eminent Domain
 G.  SB 83 -- Household Sewage Treatment Systems
 H.  HB 40 – Council on Sustainable Energy
 I.  HB 1, SB 1 – School Funding Proposal
 J.  HB 69 – Transfer of Development Rights
 K.  HB 26 – Urban Homestead Zones
 L.  HB 67 – Transportation Budget

 LITIGATION UPDATE

 A.  Moreland Hills Decision
 B.  Toledo/Perrysburg Capacity Expansion Decision
 C.  S.B. 18 – Township & County General Welfare Zoning Constitutional
      Challenge
 D.  Annexation Case
 E.  City of Lebanon Case
 F.  City of Lancaster Impact Fee Issue
 G.  Kurlemann Insurance Case

 LEGISLATIVE ENACTMENTS

 A.  HB 690 – Implements New Minimum Wage Requirements
 B.  HB 294– Foreclosure Procedures
 C.  Statewide Smoking Ban

 AMERICANS WITH DISABILITIES ACT PRESENTATION

 A.  Overview of ADA Law & Construction
 B.  Speakers
 a.  Matt Miko, Esq. – Chief Legal Counsel, Ohio Civil Rights Commission
 b.  Jan Sokolnicki – Board of Building Standards

 CONSUMER SALES PRACTICES ACT – RECENT CASE DISCUSSION

 A.  Richland County Case, Union County Case, Defiance County Case
 B.  Guests – Faye Cox & Dennis Schulze, Partners, Schulze, Howard & Cox

 OHIO HOUSING FINANCE AGENCY

 A.  Speaker – Charles Ruma

 LEGISLATIVE ITEMS – ACTION LIST


 A.  Counties, Townships and School Districts Impact Fee Legislation


A bill has not been introduced, but OHBA anticipates the legislation to enable counties, townships and school districts to charge impact fees on new development to finance capital improvements necessitated by that development. OHBA believes it will be similar to the bill introduced last General Assembly that does the following: It requires a county or township to adopt a land use plan and a capital facilities plan before it may impose an impact fee. The capital facilities plan must include an analysis of the current level of facilities, current capacity of known commitments, estimates of the costs to upgrade, expand or replace facilities, and a description of additional facilities necessitated by development in the development area.

The local governing board must adopt a resolution imposing an impact fee with a description of development area, amount of fee, when and whom fee is payable to and a description of the improvements being made. It permits more than one governing board to adopt an impact fee in a single development area. The statutory standard used to determine the impact fee states that the development area is only responsible for its proportionate share of the increased usage to the project or capital facilities improvement. To determine a project improvement, the governing board must compute a time-price differential to account for the duration during which the development is subject to the impact fee. It places demand on the system improvement in relation to the time the improvement is first placed into service and the estimated time remaining useful life of the improvement.

Project construction must begin within 10 years after an impact fee is imposed otherwise the fee must be refunded. The lawfulness, amount or determination of an amount of an impact fee may be appealed to the governing board that imposed the fee, followed by a public hearing, which may be appealed to the court of common pleas. The fee must be paid at the completion of the development.

SUGGESTED POSITION: OPPOSE: OUTLOOK:

A NEW IMPACT FEE BILL HAS NOT BEEN INTRODUCED YET, BUT ONE WILL BE SOON. LAST GENERAL ASSEMBLY, OHBA HAD A BILL DRAFTED WITH CHANGES MODELED CLOSELY AFTER THE LANGUAGE IN THE NAHB MODEL, THE BEAVER CREEK CASE AND OTHER STATES. PLEASE CONTACT OHBA TO REVIEW A COPY OF THE BILL.


 B.  Great Lakes Compact


This bill will ratify the Great Lakes-St. Lawrence River Basin Water Resources Compact and will establish related requirements. This bill must be adopted identically by Ohio and seven other states along with Canada. The main purpose for the compact is to preserve the Great Lakes water by limiting withdrawal and diversion of water from the Great Lakes Basin. However, the compact also calls for implementation of water conservation and efficiency programs.

The compact creates a Regional Council made up of the governors from each state in the compact that will enforce the provisions of the compact. The Ohio EPA and DNR will have to change its regulations to comply with orders of the Regional Council and provisions of the compact. Once Ohio adopts the compact, it cannot be released from the Compact unless a majority vote of the Regional Council terminates the compact.

SUGGESTED POSITION: WATCH/OPPOSE: OUTLOOK:

OHBA EXPECTS THIS BILL TO BE INTRODUCED SOON. THIS BILL WAS A PRIORITY FOR GOVERNOR TAFT IN THE LAME DUCK SESSION, BUT IT IS NOT CLEAR HOW INVOLVED THE NEW ADMINISTRATION WANTS TO BE. OHBA IS CURRENTLY MEETING WITH INTERESTED PARTIES. WE HAVE BEEN TOLD THE NEW VERSION OF THE BILL WILL INCLUDE AMENDMENTS THAT OHBA WORKED FOR THAT WILL REMOVE REQUIREMENTS OF A MANDATORY CONSERVATION AND EFFICIENCY PROGRAM.


 C .  SB 78 – Great Lakes Task Force (Grendell R – Chesterland)


This bill has not been introduced yet, but it will establish a task force to study the Great Lakes Compact legislation and determine whether Ohio should enter into the Compact.

SUGGESTED POSITION: WATCH: OUTLOOK:

THIS BILL HAS BEEN REFERRED TO THE SENATE ENVIRONMENT AND NATURAL RESOURCES COMMITTEE. THERE HAS BEEN SPONSOR TESTIMONY ON THE BILL. IT IS NOT CLEAR HOW QUICKLY THIS BILL WILL MOVE, BUT OHBA IS CONTINUING TO MEET WITH THE PARTIES INTERESTED IN THE GREAT LAKES COMPACT. THE TASK FORCE WILL BE MADE UP OF LEGISLATORS, INDUSTRY REPRESENTATIVES, AGENCY REPRESENTATIVES AND REPRESENTATIVES FROM THE ENVIRONMENTAL COMMUNITY.


D .  Model Planned Community Act


The Ohio Planned Community Act will establish a set of bylaws and regulations which regulate the government of an Owners Association. The legislation will not affect development or sales of a new home. It is more like a condominium association for new homes. The Act mirrors condominium laws. This Act has not been introduced in bill form, but it will probably be introduced some time early in the new General Assembly. Supporters of the bill are aware of our interest in the bill and would like OHBA’s support.

SUGGESTED POSITION: WATCH: OUTLOOK:

THERE IS NOT A LOT OF SUPPORT FOR THIS BILL RIGHT NOW. THE OHIO BAR ASSOCIATION HAS NOT COMMENTED ON THE BILL AND THE BILL APPARENTLY DOES NOT HAVE A SPONSOR YET. HOWEVER, OHBA EXPECTS THIS BILL TO BE INTRODUCED IN THE NEAR FUTURE.


E .  SJR 1 – Eminent Domain (Coughlin, R – Cuyahoga Falls)


This Resolution provides limits on the power of a public authority to take private property for public use.

SUGGESTED POSITION: WATCH: OUTLOOK:

THIS RESOLUTION HAS BEEN ASSIGNED TO THE SENATE STATE & LOCAL GOVERNMENT COMMITTEE. THERE HAS BEEN SPONSOR TESTIMONY GIVEN ON THE BILL. YOUR THOUGHTS ARE WELCOME.


F .  HB 5 – Eminent Domain (Gibbs, R - Lakeville)
      SB 7 – Eminent Domain (Grendell, R – Chesterland)


This bill provides that the General Assembly shall reform Ohio's laws regulating the exercise of eminent domain to provide for the uniform protection of private property rights throughout Ohio and to ensure that the rights of all property owners shall forever be held inviolate.

SUGGESTED POSITION: WATCH: OUTLOOK:

THE HOUSE BILL HAS BEEN ASSIGNED TO THE HOUSE JUDICIARY COMMITTEE, BUT THERE HAVE NOT BEEN ANY HEARINGS ON THE BILL. THE SENATE BILL HAS BEEN ASSIGNED TO THE SENATE STATE AND LOCAL GOVERNMENT COMMITTEE.


G .  SB 83 -- Household Sewage Treatment Systems
       (Grendell, R – Chesterland)


This bill requires the Public Health Council to rescind rules related to household sewage treatment systems and reinstate the rules related to those systems that were in effect prior to January 1, 2007.

SUGGESTED POSITION: SUPPORT: OUTLOOK:

THIS BILL WAS INTRODUCED TO COMBAT THE NEW HEALTH DEPARTMENT RULES THAT HAVE FACILITATED GROWING COSTS OF SEPTIC SYSTEMS ACROSS THE STATE. THE BILL HAS SOME SUPPORT IN BOTH THE SENATE AND THE HOUSE. IT HAS NOT YET BEEN ASSIGNED TO A COMMITTEE, BUT IT WILL LIKELY BE ASSIGNED TO THE SENATE ENVIRONMENT AND NATURAL RESOURCES COMMITTEE. SENATOR NIEHAUS IS THE CHAIR OF THAT COMMITTEE AND HE SPONSORED THE ORIGINAL BILL TO CHANGE THE RULES.


H .  HB 40 – Council on Sustainable Energy (Skindell, D - Lakewood)


This bill creates the Council on Sustainable Energy Development. The bill provides that the council on sustainable energy development shall monitor activity in the areas of biofuel and renewable energy for any developments that may assist in the growth in this state of companies whose business relates to biofuel and renewable energy and shall publicize such developments.

SUGGESTED POSITION: WATCH: OUTLOOK:

THIS BILL HAS BEEN ASSIGNED TO THE HOUSE ALTERNATIVE ENERGY COMMITTEE. THERE HAS NOT YET BEEN A HEARING ON THE BILL. MANY OF THESE ALTERNATIVE ENERGY BILLS HAVE BEEN INTRODUCED AND IT IS NOT CLEAR HOW FAR THIS COUNCIL WILL GO IN PROMOTING ALTERNATIVE ENERGY USE.


I .  HB 1 – School Funding (Setzer, R – Vandalia)
      SB 1 – School Funding (Padgett, R - Coshocton)


These bills are placeholder legislation reserved for Gov. Strickland’s school funding proposal. There also is currently an initiative petition that has been offered as a school funding proposal in the form of a constitutional amendment. Backers of the initiative are collecting signatures to place the proposal on the November ballot. The issue has been certified as a constitutional amendment and the language has been approved by Attorney General Marc Dann.

SUGGESTED POSITION: WATCH/SUPPORT: OUTLOOK:

GOVERNOR STRICKLAND’S PROPOSAL HAS NOT YET BEEN RELEASED. THE GOVERNOR CAMPAIGNED ON THIS ISSUE AND IT SEEMS TO BE AN IMPORTANT ISSUE FOR MANY OF THE MEMBERS OF THE GENERAL ASSEMBLY. IT IS NOT CLEAR HOW FAST THE BILL WILL MOVE THROUGH THE GENERAL ASSEMBLY.


J .  HB 69 – Transfer of Development Rights (Wolpert R- Hilliard)


This bill permits townships, counties, and combinations of certain political subdivisions to establish a transfer of development rights program.

SUGGESTED POSITION: OPPOSE: OUTLOOK:

THIS BILL HAS NOT BEEN ASSIGNED TO A COMMITTEE, BUT IT WILL MOST LIKELY BE ASSIGNED TO THE HOUSE LOCAL GOVERNMENT COMMITTEE (THE SPONSOR’S COMMITTEE).


K .  HB 26 – Urban Homestead Zones (Wolpert R- Hilliard)


This bill permits cities to create Urban Homestead Zones in limited circumstances in areas of the city that are blighted. It allows creation of homestead zones of at least 10 contiguous acres, but not more than 150 contiguous, in blighted areas as defined in the bill. Special assessments would be levied against the property owners in the area for the creation of a special security force for the homestead zone and for the creation of an educational scholarship program for qualified residents with children in the homestead zone for use at chartered, non-public schools.

SUGGESTED POSITION: WATCH/ SUPPORT: OUTLOOK:

THE BILL HAS BEEN ASSIGNED TO THE HOUSE STATE GOVERNMENT AND ELECTIONS COMMITTEE. THERE HAS BEEN SPONSOR TESTIMONY ON THE BILL.


L .  HB 67 – Transportation Budget (Patton R – Strongsville)


Included in Governor Strickland’s transportation budget is a measure to reform the Transportation Review Advisory Council (TRAC) and the policy it uses for the classification and prioritization of all new construction plans and contracts. One of the reforms will be to include land use decisions that reflect the requests of local communities as one of the criteria to determine the priority of new projects.

SUGGESTED POSITION: WATCH/OPPOSE: OUTLOOK:

THIS NEW CRITERIA MAY BE A WAY FOR THE NEW ADMINISTRATION TO PROMOTE ANTI-GROWTH AND ANTI-SPRAWL POLICIES. THERE HAS BEEN A LOT OF QUESTIONS REGARDING THE REFORM OF TRAC. THE HOUSE FINANCE COMMITTEE IS CONTINUING TO HAVE HEARINGS ON THE BILL. NO ONE KNOWS FOR SURE WHEN THE BUDGET WILL BE PASSED BY THE HOUSE.



V .   LITIGATION


A .  Moreland Hills update

In the summer of 2005, the Ohio Supreme Court held oral arguments in the Jaylin v. Moreland Hills appeal of a zoning denial to build homes on a ½ acre lot instead of 2 acre lots as required per city zoning. OHBA, the Home Builders Associations of Toledo, Cleveland, and Cincinnati, among others, filed an amicus curiae brief in support of Jaylin’s contention that a developer’s proposed use of a property subject to a zoning restriction must be considered in a constitutional challenge to that zoning code. In January, the Ohio Supreme Court rejected Jaylin’s argument and upheld the appeals court decision. The court held that contrary to Jaylin’s argument that the “proposed use” of a property must be the focal consideration in a constitutional challenge to a zoning ordinance, the primary inquiry is whether the ordinance was clearly arbitrary and unreasonable having no substantial relation to public health, safety, morals, or general welfare as applied to the owner’s property, not its proposed use. In essence, the court re-affirmed the deferential standard by which zoning laws are scrutinized, striking a blow to developers who hoped this case would give them greater footing to challenge archaic zoning laws.


B .  Toledo/Perrysburg Capacity Expansion

The Property Rights Coalition and Toledo HBA are continuing negotiations with the city of Perrysburg over the city’s proposed expansion fees for water and sewer for new construction/customers. The Coalition and Toledo HBA, along with OHBA’s financial support, commissioned a study to determine what fees would be reasonable in light of Perrysburg’s growth and expected capital costs. The study re-affirmed the building community’s belief that the fees were high and unfairly burden new development with costly infrastructure development fees. To date, the city of Perrysburg and the Toledo HBA/Property Rights Coalition are continuing to negotiate a reasonable fee in lieu of litigation. The study can be obtained from OHBA.


C .  General Welfare Zoning Case


The Akron Metropolitan Housing Authority along with townships in Medina County filed a lawsuit in the Franklin County Court of Common Pleas this spring challenging the constitutionality of SB 18, the bill granted counties and townships limited general welfare zoning authority. The AMHA and the townships claim SB 18 violates the Ohio constitution’s single-subject requirement, among other constitutional claims. Recently, the Ohio General Assembly was dismissed as a defendant in the case, leaving the state of Ohio as the sole defendant. OHBA has agreed to assist the Attorney General in defending the constitutionality of SB 18, but at this point the case is in its procedural stage. However, OHBA and the Home Builders Association of Greater Cincinnati plan to file an amicus brief with the trial court in support of SB 18’s constitutionality later this month.


D .  Annexation Case


OHBA allowed its name to be used in a recently filed amicus curie brief on an appeal to the Ohio Supreme Court involving an annexation dispute in Montgomery County. At the heart of the dispute is whether or not “owners” of property that have agreed to annexation have an ownership interest in the roads affronting their property. The Appellate Court essentially ignored a 2001 General Assembly amendment that excepted roads and streets from the definition of “owner,” re-creating the pre-2001 problem of roads in annexed area being basically split down the middle with the annexing municipality obtaining ownership over one-half with the township maintaining ownership over the other half.

The Ohio Supreme Court heard the appeal, upholding the ruling of the lower court in finding that the landholders of the property in issue were “owners” under the relevant statute. The decision essentially makes owners of land of property over which the roadway easement exists are “owners” of the roadway per statute when others seek annexation of the roadway.


E .  City of Lebanon Case


In May 2002, the Home Builders Association of Dayton & Miami Valley and the Home Builders Association of Greater Cincinnati filed a complaint in the Warren County Court of Common Pleas against the city of Lebanon and City officials. The complaint was in response to the city of Lebanon passing an ordinance requiring all newly constructed commercial and residential units be connected to the city’s broadband telecommunications system. The ordinance required that a connection “shall be initiated upon the granting of a new construction permit.” It also required a connection fee to be paid of $1,250 for residential and $2000 for an industrial connection.

The home builders were successful on one of their claims of the complaint that the new connection requirement was an unconstitutional taking in violation of the Fifth Amendment of the United States Constitution. The City of Lebanon appealed the decision to the Twelfth District Court of Appeals.

In February 2006, the Court ruled in the home builders’ favor once again holding that the common pleas court correctly held that the mandatory telecommunication connections imposed by the city were an unconstitutional taking. The Court held that the fees imposed by the city were permissible, however, only if the property owner requested to be connected to the system.

The City then tried to appeal to the Ohio Supreme Court, but the Court refused to hear the case. This affirmed the Twelfth District Court’s decision, forcing the city of Lebanon to begin paying back nearly $1 million to affected builders, plus interest.


F .  City of Lancaster Impact Fee Issue


The City of Lancaster enacted a fire/EMS impact fee ordinance effective July 1, 2005 and is proposing to adopt a road impact fee soon. According to the fire/EMS fee calculations adopted by the city, new residential units will be charged $2,223 per unit starting January 1, 2006, an amount more than seven times the national average, while the proposed road impact fee will be around $642 per home. Home builders impacted by the fee are currently exploring litigation and a national impact fee expert has been retained to review Lancaster’s study supporting these fees. The study can be obtained from OHBA.


G .  Kurlemann Insurance Case


OHBA allowed its name to be used in an amicus brief filed in the Court of Appeals, 12th Appellate District located in Warren County in a case involving the interpretation the word “occurrence” as applied to a builder’s commercial general liability policy issued by Midwestern Indemnity. At issue in the case is Midwestern Indemnity Co.’s refusal to recognize defective work done by Kurlemann Builders’s subcontractor as an occurrence under the policy, resulting in Midwestern’s subsequent refusal to indemnify Kurlemann in an action brought by homeowners against them for damages allegedly arising out of their construction of the home. In a mere two page opinion, the Appellate Court rejected Kurlemann’s argument that faulty work done by a subcontractor is an occurrence under the policy, holding that “claims for defective or negligent workmanship or construction do not constitute an occurrence as defined in the policy.” Kurlemann’s appeal to the Ohio Supreme Court was denied.


V .  LEGISLATIVE ENACTMENT


A .  HB 690 – Minimum Wage (Seitz R – Cincinnati)

To implement constitutional amendment raising the minimum wage and
adjusting it to the federal rate.


B .  HB 294 – Foreclosure Procedures (Kilbane R— Rocky River)

This Act, among other things, requires a residential rental property owner to file with the county auditor certain information about the owner and the property.


C.  Statewide Smoking Ban –


The new statewide smoking ban has been enacted, but the rules implementing the ban have not been formally adopted. The new rules are expected to go into effect in May. The ban will prohibit smoking in enclosed areas and any public place. Please contact OHBA for further information.

  WELCOME – OPENING COMMENTS

 OEPA ISSUES
 a.  Proposed 401 Stream & Wetland Mitigation Rules
 b.  Isolated Wetlands Permit Update
 c.  Permitting Issues – EXAMPLES NEEDE
 i.  OEPA
 ii.  Army Corps of Engineers

 AGENCY ISSUES


 a.  ODH Household Sewage Treatment System Rules - UPDATE

OEPA ISSUES


A.     Proposed 401 Stream & Wetlands Mitigation Rules


After years of anticipation, the Ohio Environmental Protection Agency has unveiled its draft rules regulating stream and wetland mitigation under the state’s 401 certification program.  The rules are very similar to the mitigation rules in effect in North Carolina, as they place a heavy emphasis on the ranking of stream/wetland quality in which developers must replace a filled or dredged stream/wetland with a mitigated stream/wetland of equal quality.  One of the more burdensome requirements proposed in the rules is the massive amount of technical information that must be submitted with the 401 certification application, including information on aquatic life that can only be sampled during the non-winter months, making it very difficult to prepare a permit application in the winter months.  For the first time, OEPA has established detailed rules regulated stream mitigation projects, which is the emphasis of this rule package.  OHBA has provided comment on the rules and is actively participating in workgroups established by the agency.

OHBA is also preparing a comprehensive alternative package to propose in contrast to OEPA’s rules.  The alternative will be supported by a variety of industry groups, which will make our proposal very difficult for the new administration to ignore.

POSITION:  PROVIDE COMMENT ON THE DRAFT RULES, PARTICIPATE IN THE OEPA WORKGROUPS, AND OPPOSE ANY STREAM AND WETLAND MITIGATION RULES THAT UNDULY BURDEN DEVELOPMENT WITH OVERLY RESTRICTIVE MITIGATION STANDARDS.
OUTLOOK:  OEPA HAS ESTABLISHED MONTHLY WORKGROUP MEETINGS WITH INTERESTED PARTIES TO DISCUSS PARTICULAR SECTIONS OF THER RULES.  OHBA IS AN ACTIVE PARTICIPANT , THOUGH IT APPEARS THE WORKGROUPS ARE MERELY AN EXCUSE FOR THE AGENCY TO SAY THEY OUTREACHED TO THE REGULATED COMMUNITY.  THE WORKGROUPS ARE SCHEDULED TO END THIS SEPTEMBER.


B.    Isolated Wetlands Permit – Update


OEPA is conducting its 5-year permit renewal of its isolated wetlands permit.  As you may remember, OHBA was instrumental in crafting the state law that establishes these permits.  However, because the state law is written so specifically, the permit will not undergo any significant changes.


C.   Permitting Issues – EXAMPLES NEEDED
      i.   OEPA 
      ii. Army Corps of Engineers


IV.   AGENCY ISSUES


A.   ODH Household Sewage Treatment System Rules – UPDATE


OHBA continues to stay actively involved with resolving issues in the now effective new Department of Health septic-system rules.  At this point, because the rules are now effective, OHBA is collecting as much information as possible relative to increased costs, permit delays, and other problems attributed to the new rules.  Understandably, some areas of the state will not be that drastically effected by the new rules, however, there are many counties where these new rules will make it very difficult to install an affordable septic system.

DOH is conducting training throughout the state for local boards of health and is attempting to make the public aware of soil scientists who are both affordable and qualified to conduct the required soil tests mandated by the new rules.  Unfortunately, reports from many counties indicate that the local regulators simply do not understand the rules, do not know how to enforce the rules, and have simply started requiring expensive mound systems in order to err on the safe side (mound systems are specifically written into the code).