June 19, 2003

Questions raised about whether cabooses can house business

Questions about the location of the two yellow cabooses on the bikepath have the Village wondering whether it may have violated an agreement with the State of Ohio when it allowed a business to occupy the two structures.

Though a bikepath related business, now called Caboose Bike & Skate, has been run out of the cabooses for 11 years, questions have been raised about the location of the business and whether the Village, which owns the cabooses, intended to create competition with Yellow Springs’ other bicycle business, Village Cyclery. That the owners of Village Cyclery are raising some of these questions has made this situation even more complex.

Last month, Village Council president Tony Arnett framed this issue this way: Did the Village have the authority to place the cabooses on the bikepath to house a business, and what was the Village’s intent in renting the structures to a business?

At Council’s meeting Monday Arnett may have partially answered his own question when he said that he did not think “it was Council’s intent to create competition with an existing business.”

The issue boils down to contradictory agreements signed by different Councils. A 1986 resolution approved by Council stating the Village’s interest to work with the Ohio Department of Transportation (ODOT) and a 1987 agreement between ODOT and the Greene County parks department state that “private installations” on the bikepath right-of-way are prohibited.

Then in 1991, Council approved a resolution authorizing the lease of the cabooses to local residents Selwa Whitesell and Doug Roberts. Roberts and his wife, Chris, now own Caboose Bike & Skate. At the time of the original agreement, Whitesell and Doug Roberts renovated the cabooses, which the Village had received from Wright-Patterson Air Force Base, and opened a bike and skate rental business.

The Village has approved three leases since then with Whitesell, who is no longer involved in the business, and the Roberts, in 1992, 1995 and 2000. The current lease is for 10 years.

Kent Bristol, who served as Village manager when the 1986 and 1991 agreements were approved, said that it was possible that he may have overlooked the ’86 agreement when he negotiated the lease for the cabooses. But, Bristol said, he does not remember the details of the situation.

Bristol did offer his assistance to the Village, telling Council on Monday, “if I can help sort the matter out a bit, I would be happy to do so.”

Even in 1991, questions were raised about the Village’s plans to rent the cabooses out as a business. Joe Lewis, who was on Council, expressed concern that the 1991 proposal contradicted the 1986 agreement with the State. According to a Sept. 19, 1991, News article, Lewis said that ODOT and the Village solicitor, Alan Anderson, gave their approval for that business.

But it appears that no written evidence of that approval exists.

In a letter to John Spariosu and Marcia Sauer, owners of Village Cyclery, Village Manager Rob Hillard said that an ODOT official has said that “the Village did not receive written permission to use the cabooses for private, commercial use,” and that the department would not have given the Village permission on the right-of-way because “we are an incorporated village.”

“We’re obviously concerned and we’d like to find a resolution if one is available,” Hillard said in an interview, though he would not comment about possible resolutions.

Hillard and the current Village solicitor, John Chambers, an attorney with Coolidge, Wall, Womsley & Lombard on Dayton, have been reviewing the situation. Council, Hillard and Chambers met in an executive session, which was not open to the public, at Council’s meeting Monday to discuss the issue.

At the same meeting, Chris Roberts said that the Roberts want “to maintain the integrity of our lease” and asked Council for its support. She said that the Roberts can obtain written acknowledgment from the federal government, which issued a grant to help build the bikepath, that it is legal for the Caboose business to operate on the bikepath. In order to do this, Roberts said, Council, Greene County and the State of Ohio would have to issue written statements of support for the business.

Council said that because the situation is under legal review it was not appropriate to comment at this time, though Arnett said that “both businesses are valuable contributors to the community.”

On Tuesday, Sauer said that she did not want to comment on the issue, though she did say that she and Spariosu “hope that once all the legal questions and concerns have been satisfactorily answered” a compromise can be reached and both businesses can coexist.

Spariosu has twice discussed the situation at Council meetings, raising concern about the legality of a commercial business on the bikepath. He has also questioned why the Village’s review has taken so long.

In April, Spariosu told Council that he did not have a problem with the location of the Caboose business because it initially was a rental shop. Now the Caboose also sells bicycles, which interferes with Village Cyclery, he told Council.

Bristol said in an interview on Tuesday that originally the Village worked with the Caboose business to set up a rental shop. The store’s lease says it can rent or sell skates and bicycles and related gear.

Joe Lewis, who was serving on Council in 1991, said that the Village’s purpose is “hard to document,” but his intent was to provide the Caboose business with a “low-level lease” and that the business would not make “significant improvements.”

Both Lewis and Tony Bent, who also was on Council at that time, said that the Village was helping to establish a rental shop. “I think Village Council at the time thought it was a good idea because it was a bicycle rental operation on the bikepath,” Bent said.

The Roberts have said that Village Cyclery wants to put them out of business, though the Roberts also say that their shop does not directly compete with Village Cyclery because they cater to a different clientele and sell different products.

Sauer said that she and Spariosu understand that competition “is part of free-market capitalism.” But, she said, the Caboose operates on Village-owned property and Sauer and Spariosu have never been given the opportunity to bid for the lease.

—Robert Mihalek