Against certified citizen petition, Whitehall grants developers new chance

WHITEHALL, Ohio (WCMH) -- The same day Whitehall granted citizens the right to vote on tax breaks for an upscale development, its city council offered developers another chance, a move that resident organizers said violates the law.

After disagreeing with council's decision to grant three tax breaks for the high-end Fairway Cliffs development, residents organized to get the tax incentives on the ballot. However, the same day citizens learned they would be able to vote on the tax breaks, council granted Fairway Cliffs' developers the chance to adjust their proposals to be more "palatable" to the community. The city said this does not harm petition rights, but organizers said the decision was "unacceptable."

Residents have pushed back against three tax breaks for the nearly 50-unit Fairway Cliffs proposal since 2023, but council still approved them in April. Organizers retaliated with referendum petitions, which allow ordinances to go to a citizen vote with enough valid signatures. Residents received word on May 7 that the referendum petitions they filed were sufficient.

That same day, city council met and discussed both the referendum petitions and a request from Fairway Cliffs' lawyer, Mike Shannon. Shannon requested a chance to submit reconsiderations on the ordinances that had just been approved for a citizen vote, which council granted.

"We've heard all of the public comments for quite some time, and we're going to look and see what, if anything, we can change," Shannon said. "You'll have the same opportunity that you had historically without impacting their referendum rights by this action we take here this evening."

At the meeting, Council President Thomas Potter read a statement on behalf of City Attorney Brad Nicodemus, which informed council of the petitions' sufficiency and told councilmembers they would need to vote to set an election date. Nicodemus was absent from the meeting and said he could answer questions at a later date.

With knowledge of the petitions' approval, council members debated Shannon's request before ultimately granting it. Councilmembers determined they did not believe allowing new proposals would violate referendum rights.

"We're taking no action to do anything to upend the referendum or any action to move these three pieces of legislation forward, just to reconsider to give the developer and council time to make some modifications," Potter said. 

Developers now have until June 17 to submit new proposals to council. If the new proposals pass with a large majority, they will have an emergency clause and will override the referendums. If they pass with a simple majority, the referendum petitions will stay intact.

But residents like referendum organizer and council candidate Holly Stein said the move violated citizens' rights. She alleges the permission to rewrite the language to be more "palatable" for the public directly contradicts council's legal responsibility to respect citizen referendums.

"This is not acceptable on so many levels: procedurally, morally and ethically, and raises profound constitutional questions about the processes in place at the Whitehall legislative branch and administrative branch," Stein said.

Referendum rights are protected in both the Whitehall City Charter and the Ohio Constitution, and Stein alleges council's actions violate both codes of law. Both the charter and state Constitution do not directly limit city council from its actions; however, they do lay out clear terms to be followed in a referendum petition that do not include the option for revision or council involvement at all.

When asked about the legality of the council decisions, the city referred NBC4 to the statements made at the council meeting. A representative for the mayor's office said the city "welcomes all public engagement in all forms and celebrates citizens exercising their civic rights."

Stein reached out to Franklin County Probate Court Judge Jeffrey Mackey for guidance on how to proceed. If the referendums remain on track, Nicodemus said it is likely citizens will vote on the tax breaks in the November election, although council is permitted to set a special election date.