Last Thursday Brandy Pohl appeared before the BZA to get a Special Use Variance for Max’s Playhouse‘s new location at 450 & 454 School Street. I’ve been helping Brandy through the construction process and appeared with her at the variance hearing. The article to the right appeared in the December 26th Edition of the Culver Citizen.
Max’s Playhouse is an interesting project as it is basically residential construction with added caveats required for licensing as a child care provider. Brandy knows her requirements backwards and forwards, but blending those into residential construction has created a few challenges for us.
The location on School Street seems to be a perfect one as it is grouping three of the main child care providers, Max’s Playhouse, Culver Community Schools and Wesley Church within a two block area. There are some issues with the traffic flow which Brandy hopes to work out with the Town Council soon. Solutions there could affect the budget and the work she hopes to do.
As a personal side note, the BZA is a tough sell when the Town is looking for citizens to serve. Very rarely do all sides appearing before the board leave happy. Dan Adams has served on that board for years. He demonstrated his pragmatism and tact again Thursday night as he condensed the hearing down to the basic issues and brought the board to a unanimous decision. There was some public opposition, but most of it didn’t pertain to the issues before the board. He allowed the audience input and then tactfully ended it before it became contentious. I was pleased to hear that Dan has agreed to serve another term on the board. His steady hand there has served the Town well. I always know I will get a fair hearing when Dan runs the show.
I’ve been at four meetings where a downtown parking lot has been discussed: two Redevelopment Commission meetings, a Plan Commission Meeting and a Town Council meeting. At two of these meetings I’ve listened to the adjacent property owner discuss her concerns. So far her concerns have received little sympathy, though I believe they have some merit. In my opinion there are two issues here, 1) Rezoning the property from R1 to C2 and the subsequent variance and 2) the parking lot itself. The rezoning has been completed, so that’s basically a moot point, but just for kicks and giggles, I’m going to discuss both here:
Let’s start with the Comprehensive Plan. The Future Land Use Map shows this block on Main Street as Mixed Use: “Mixed Use development is characterized as multi-story structures with retail, restaurant and service uses on the ground floor and office or residential uses on the upper floors where appropriate.” (pg 45) In the downtown district there are multiple references to the maintaining the “streetwall”, in general would imply a C-1 Zoning District.
The downtown, between Washington Street and Madison Street along Main Street, is zoned C-1. The block south of Madison Street is zoned C-2 on the east side and R-1 (with the exception of this recent rezoning) on the west side. Where this determination came from is somewhat puzzling since the description of the C-2 District in the Zoning Ordinance starts off: “The C-2 Commercial District is a general commercial district designed to serve free-standing commercial activities which may be highway oriented or those business establishments which by their nature do not readily adapt to a downtown location.” This area is obviously compatible with “downtown” since it is downtown and these businesses are in no way “highway oriented”. They also meet the requirements of maintaining the streetwall, though they do have off-street parking. So… this rezoning is a case of spot zoning, i.e. an island of C-2 in between R-1 lots. It is also contrary to the Comprehensive Plan which shows this area as part of downtown and suggests that it be C-1 to encourage the streetwall.
The adjacent property owner has legitimate complaints. 1) This will not enhance her property and will no doubt be detrimental to it as a residence which she hopes to maintain and 2) by making this a spot zoning and not rezoning the entire block as a commercial district she has not even benefited from the possibility of increasing the value of the property as a potential future commercial development site.
And to address the variance, the C-2 rezoning created this problem. C-1 has zero side yard setbacks, so this could have been moot on that basis.
I would argue that if rezoning was to occur here, the entire block should have been rezoned as C-1.
Parking:
There is some question in my mind regarding the need for additional downtown parking. Again, looking at the Comprehensive Plan I found the following references to parking:
And there are more references such as the section on creating Parking Policy on page 65 and the discussion of Complete Streets on page 94 continue to talk about avoiding parking lots on Main Street and encouraging on-street parking or parking in the rear. There are also sections that suggest parking be screen, include planting islands and trees for shade. None of which have been included in the plan up for consideration.
The parking lot proposal is a collaboration between the Town and the developer of the building at 232 South Main Street. At the public meetings it is being discussed as a public project and fulfilling a need for downtown parking. In actuality it seems to be more of a response to the relocation of the Lake Shore Clinic to 232 South Main Street and the perceived increase in parking needs. This is somewhat frustrating since prior to construction in 2007, the developer was granted a parking variance from ordinance standards. It would seem that if the building had included the required parking spaces this new lot would not be required. But doubly so, since as the Comprehensive Plan, just completed last year, discusses parking availability and underutilized parking lots as positives.
I would also question whether the proposed parking lot meets the Zoning Ordinance parking requirements, specifically 1) There shall be onsite stormwater detention (pg 54, Design and Maintenance #7) and 2) There shall be no parking in the front yard (pg 54, Design and Maintenance #11) While there are drywells called out on the plans, I would rather see an above ground detention structure that can be cleaned and maintained. Regarding the front yard, I had an interesting discussion with the Building Commissioner. He does not consider this property as having a front yard since there is not a building on it, but also noted that the setback is considered the front yard when looking at site distance in L-1. That also then brings up whether the parking lot is considered a structure, which it would be under the definitions on page 14, at which point it might again need a variance for violating the front setback. And then there is the impervious surface restriction. I’m not sure how they are going to keep less than 60% impervious surface with a parking lot that is only setback 12″ from the side lot lines. The Building Commissioners position is that parking lots are not defined in the Zoning Ordinance which means everything is up for interpretation by the Plan Commission. Fair point, but not particularly helpful heading into a hearing.
A couple of final thoughts I have. First, I would probably not be in favor of the variance request tonight (though I won’t speak against it). If the entire block had been rezoned, I would have been more likely to support it, but the spot zoning seems quite odd. The decision making seems a bit schizophrenic in that we’re shoehorning in a spot zoned commercial use, without making the commitment of expanding the surrounding residential area as commercial use. Second, I am very disappointed that the Comprehensive Plan was not consulted in this decision. I did not see it discussed in any of the above meetings and that’s unfortunate when the plan is not much more than a year old. True it is just a plan and as with all plans, subject to change, but my feeling is that it was ignored, not changed. Such is life in the big city… or Culver…
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See an after-meeting follow-up post here.
Nonconforming
February 12, 2024
Kevin Berger
Commentary, Culver
BZA, Community, Culver, government, Plan Commission
While I’m not a fan of conformity in everything, I do tend to be a rule follower. Yes or No rules are fairly easy to follow, but so many rules in the real world don’t easily fall into Black & White, but actually fall into gray areas. Even ones that are clearly yes or no, sometimes cause hardships that need consideration. In the world of Zoning, this is the reason for the Board of Zoning Appeals (BZA). When a building or property doesn’t fit neatly in the box laid out by the Zoning Ordinance, the BZA has the ability to inject some flexibility.
This is a recurring topic with the Culver Plan Commission and it came up again in the January meeting. There is always a laudable effort to reduce the load on the BZA, when the BZA is continually hearing similar requests on which it routinely grants variances. There is a whole chapter in the Culver Zoning Ordinance for this. Chapter 8 is titled, “Nonconforming Structures, Lots and Uses” to try and handle this, but there are times that it is still not enough. The Building Commissioner put forth a proposal that a structure should be allowed to be rebuilt on the same footprint without a variance. Again, this is something that is routinely granted. But I don’t think it is something where a variance should be waived.
As with a lot of our government where there are multiple individuals involved, the BZA is often in the business of finding reasonable compromises. The concept of allowing reconstruction on the same footprint is already a bit cumbersome in practice. Often, the reason for wanting to build back on the original footprint is because that allows continued violations of required setbacks, impervious surface standards or other ordinance rules. Sometimes this is a necessity due to lot sizes, but there can still be issues. Without review, the policy can be abused.
In the past, every nonconforming structure required a BZA review and variance in order to make any changes. The idea was for there to be a review to see if the proposed project could make the structure less nonconforming, if not bring it completely into compliance. This not only gave the BZA the opportunity to review the project, but allowed the neighboring property owners to voice support or concerns regarding the project. The current thinking is that this is unwieldy, but it served a useful purpose.
I have three main concerns with this proposal and the current ordinance:
I think the Building Commissioner is right to ask for clarification and if enough detail is put into determining allowable reconstruction, this is a reasonable thing to delegate to his authority. As it’s written, it’s a minefield and I be concerned about uneven application.
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