Board of Zoning Appeals

Regular Meeting Minutes of the Murfreesboro Board of Zoning Appeals June 26, 2019 – 1:00 P.M. Council Chambers MEMBERS PRESENT MEMBERS ABSENT Davis Young, Chair Ken Halliburton, Vice-Chair Julie King Tim Tipps Misty Foy STAFF PRESENT Brad Barbee, Planner David Ives, Assistant City Attorney Donald Anthony, Planning Director Brenda Davis, Recording Assistant Chairman Young called the meeting to order at 1:00 P.M. The minutes from the May 22, 2019 regular meeting were approved as submitted. Mr. Anthony came to the podium and introduced Mr. Brad Barbee to the Board Members. Mr. Barbee has worked in the Planning Department less than a year but has worked for the City much longer handling landscape, landscape review and sureties in the Urban Environmental Department. Mr. Anthony said when the Urban Environmental Department was dissolved, Mr. Barbee transferred over to the Planning Department. He handles, along with Ms. Amelia Kerr, a lot of the Planning duties for the eastern and southern portions of the City. He said Mr. Barbee will be presenting the Staff Report today for this application. Mr. Anthony said he would like to expand on Mr. Barbee’s remarks, at the end of the Staff Report. Special Use Permit Application Z-19-021 by Mr. Yassin Dakkak, represented by Mr. Clyde Rountree of Huddleston-Steele Engineering, Inc., is requesting a special use permit in order to operate a motor vehicle sale (automobile sales) establishment in a Highway Commercial (CH) zone for property located at 2135 Southeast Broad Street (Manchester Pike). BZA Minutes Regular Meeting June 26, 2019 Mr. Barbee reviewed the application and staff comments. If the Board approves this application, Staff recommends the following conditions: 1) Parking and display of automobile inventory shall occur only in areas designated in the special use permit application. Driveway aisles, public right-of-way, and landscaped areas shall not be used for automobile parking or display. 2) Automobile parts and salvage/junk automobiles shall not be stored on any outdoors portion of the site. 3) All automobiles visible from the public right-of-way or lying adjacent to any area zoned for residential uses shall be operational. 4) Outdoor sound amplification shall not be allowed. 5) Automobile loading, unloading, staging, and maneuvering shall not be permitted within any public right-of-way. 6) Automobile service bays and overhead service area doors shall not be visible from any public right-of-way. 7) Hours of operation shall be limited to “daytime hours” as defined in the Murfreesboro Noise Control Ordinance. Mr. Anthony came to the podium and voiced the department’s opposition to this request. He said there are multiple corridors throughout the City that house quite a few automobile dealerships, Broad Street, South Church Street, Medical Center Parkway, Memorial Boulevard being among those. Mr. Anthony said Mr. Barbee and he have been visiting many of them and have cited or come very close to siting repeated zoning violations at many of these dealerships. He said, driving on Broad Street to Smyrna this morning, between City Hall and Florence Road he was able to identify eleven different automobile lots that were violating the Zoning Ordinance and/or parking in the right-of- way. Mr. Anthony said those are very common things they are seeing. Parking on grass, parking on driveways, blocking driveways and parking in the right-of-way is what they keep seeing. He said the inventory at these dealerships quite often exceeds the ability to park the cars. This plan that has been submitted to us has fewer than twenty spaces for inventory vehicles to be parked. The competitive nature of automobile dealership tells him there will be way more cars on that lot over time than what they are able to provide spaces for. Mr. Anthony said they are also concerned about he compatibility with the surroundings. He said there is a daycare center located nearby, and an office park adding an automobile dealership is just out of character with the area. Mr. Anthony said they also have concerns with access to the site as well as the roadway network. He recognizes that the site has been used as a car wash and could continue to be used as one adding there are other “by-right” uses that could be problematic for traffic access and compatibility. Mr. Anthony said although automobile dealerships bring unique challenges to a site and he asked that the Board not permit yet another use that could further disrupt this area. Mr. Anthony asked the Board to deny this Special Use Permit based on the first standard of general applicability listed in Section 9 of the 2 BZA Minutes Regular Meeting June 26, 2019 Zoning Ordinance. Staff is available to answer any questions and the applicant is present as well. Chairman Young asked if there was consideration of closing the entrance onto Broad Street due to traffic concern and using Keeneland Commercial Boulevard. Mr. Anthony said they run into issues when they try to require someone with road frontage to close off a pre-existing access. He did not think they could legally close off a pre-existing access. Chairman Young asked if there was any way to know or compare traffic flow from a car wash to a car dealer. He understands there are so many variables, that would be difficult. He asked if traffic would be comparable between those two types of uses. Mr. Anthony said the traffic probably would be comparable adding their argument is just that there are already the “by-right” uses that are disruptive and granting another use that is not a “by-right” use would complicate the matter. Mr. Tipps asked Mr. Anthony to summarize some of those “by-right” uses. Mr. Anthony said in the Highway Commercial Zone, thinking of washes and auto uses, you could have various types of vehicle washes, vehicle repair. He said the City had to issue a citation a few months ago at this site because there was an illegal vehicle repair operation being conducted. Mr. Anthony said generally the heavier industrial type uses such as retail and offices could also be on that site. Mr. Tipps said it appears to him the days of the self-car washes have kind of come and gone adding the economic viability of that just doesn’t seem to be there and seems to be extremely saturated with the automated-type car washes in the City as well. He expressed appreciation on the summary of the other uses. Ms. Foy asked if there is currently street parking on Keenland Commercial Boulevard. Mr. Anthony said if people are parking on that, he doesn’t know if that would be sanctioned parking. Ms. Foy said that is what she thought and thanked Mr. Anthony. Mr. Clyde Rountree with Huddleston-Steele Engineering, representing the applicant came to the podium and thanked the Board for allowing him to address Keeneland Car Sales. He said they have been working thru this process for quite a while. He said there is a bias against any kind of car lots because there are so many issues with them. Mr. Rountree noticed when he was driving to City Hall today from Huddleston-Steel 3 BZA Minutes Regular Meeting June 26, 2019 Engineering that most of the car lots on Broad Street would not comply with the new Zoning Ordinance, primarily due to the unloading zones. He said when they had their initial meeting with Staff, they went thru the 21 characteristics of a car lot. He said there was a pretty clear expectation that more than likely this would not work. Mr. Rountree said after they made it thru that hurdle and discovered it could actually work for a car lot because basically there are very few lots in the City that will. He said there are lots larger than this lot that wouldn’t qualify for a car lot because there was no way to unload the vehicles. He said that is the biggest issue. Mr. Rountree said when they made it thru that hurdle, they went thru multi concepts. He said the big criteria was unloading the cars on-site. He said they went thru 3-4 different site plans, met with City Staff to make sure they could get it to work. He said they finally got a site plan that would work for a car lot with the unloading of cars on-site. Mr. Rountree said the concerns with traffic, because of the shear size of this lot, is not going to be a high-volume type of car lot. He did not feel traffic would be a major concern. Mr. Rountree said the issue they are walking into is there is an existing building as a car wash on-site. He said the building just sits there and collects trash. The owners have had issues where people go into the bays and run off. He said the owners are stuck with a building that probably won’t be a car wash and it is a building that could be retrofit to allow this to potentially work as a car lot. Mr. Rountree said it would take some improvements on the sight, enclosing the bays, the access doors would be away from the right-of-way. He said they met all criteria to make it a car dealership. Mr. Rountree said the interpretation is it is an underserved, dilapidated building available for multi-type. He said anyone that purchased that property and it cannot be used as a car wash, the current building would have to be torn down. He said it puts the potential Developer in a situation where that will probably sit as a vacant car wash for a long time just because of the criteria already on the site. Mr. Rountree said as far as the owners are concerned, they have done their best to meet all the expectations outside of the one that says it is just a car lot and that is what the City doesn’t want. With that in mind, Mr. Rountree asked the Board Members to consider that because he feels the effort on their and the interaction with the City has been such that they were never told “no” from the Staff in terms of “no way, we’re not going to approve it” but more “you need to meet the criteria”. He said they kept revising the plan to “meet the criteria”. For example, they realize additional landscaping will be needed to screen the bay doors that are visible from Broad Street. Mr. Rountree wanted to make sure they represented the fact they have been thru the process, met expectations and were never really told “no and it was just not going to happen”. He said that is how it is handled sometimes when working with a special exception. From the owner’s standpoint, they did all they could to meet the expectations the City had and once the site was given clearance in the sense they can meet those 21 criteria and even the ones mentioned by Brad. He said the applicant will make the site very nice. Mr. Rountree said traffic is not going to be a major concern for a car lot on this site. Mr. Halliburton asked if the turning radius for a truck tractor will be able to turn into this place and take a right out of the site. 4 BZA Minutes Regular Meeting June 26, 2019 Mr. Rountree said yes as they can enter in off Broad Street and circle the building. They had to move the drive-isle. The exit-isle is going to be to the right of the property to allow the car hauler to exit off the property. Mr. Rountree said the Zoning Ordinance reads wherever a car/vehicle unloader are, it can’t inhibit any movement on-site. You have to make sure to accommodate room for the vehicles to be unloaded but you also have to accommodate room for whoever comes on-site so the vehicle is not inhibiting normal traffic. He pointed out the traffic arrows to show the flow of movement. He said in theory a car could be dispensed off the truck and the business operate as normal. Mr. Rountree said that is a new nuance, as well because the 100-foot by 25-foot zone that is needed, to have that happening while the business operates is a little challenge. He said they were happy to find a way to allow the business to function if cars were being loaded / unloaded on-site. Chairman Young opened the public hearing. There being no one to speak for or against the application, Chairman Young closed the public hearing. Ms. King said with the concern being about parking spaces and she sees there are two employee parking spaces and two customer parking spaces designated on the site plan which would leave 19 spaces for sale of automobiles. She asked if there were any other comparable sites in Murfreesboro with 19 or less car bays for commercial sales. She said there are several other small auto dealerships in town but didn’t know if there were any comparable sites presently. Mr. Anthony said he drove by a couple car lots this morning that were probably designed for about the same amount as requested today or perhaps even fewer and at both sites, cars were parked in the grass, pulled up into the driveway inhibiting the flow of traffic in and out of their site. He said it becomes an inventory control issue. Ms. King asked if, in the history of the many years of BZA meetings there ever has been any previously approved sites of this nature not under the current Zoning Ordinance. Mr. Anthony said no. He said automobile sales in the past were “by right” in districts and does not believe any would have come before the Board of Zoning Appeals. It is only with the enactment of the new Zoning Ordinance a year and half ago but now in the CH zoning district BZA action is required. He asked if any of the Board Members have seen any applications. Mr. Halliburton agreed with Mr. Anthony and said he does not remember any coming before the BZA in the past. 5 BZA Minutes Regular Meeting June 26, 2019 Ms. King said she has seen tire and tire sales in the Avenue area but doesn’t recall anything like this. She was trying to get some kind of precedent, if possible, if there was any at all. Mr. Anthony said prior to the announcement of the new Ordinance, vehicle sales were allowed “by right” in CH and Industrial zones. He said when they revised the Zoning Ordinance, they remained “by right” in the Industrial zones but they became a Special Use Permit in the CH district. Chairman Young asked who polices the zoning violations that occur at these sites. Mr. Anthony said Mr. Barbee stating enforcement of those have become very difficult. He said Mr. Barbee has been dealing with one lot for six months and they finally have a court date within the next month. Mr. Anthony said that is how long it takes. Chairman Young asked if the Ordinance has been in place since the last change you are talking about. Mr. Anthony said the issues of cars parking in the grass, blocking driveways and parking in right-of-way are not affiliated with current Ordinance. He said those are things that are just not permitted in the City under the current Ordinance and under the previous one as well. Mr. Halliburton asked so you go thru this process and what happens, are citations given, what happens after that. Mr. Anthony said the one the City has been working thru the last few months, have ultimately got compliance. The City is still moving forward with a court date for a different reason. He said the car lot moved their cars to another property and doing the exact same thing there. Now the City has to start that process all over again on a different site. Mr. Anthony said they are dealing with the same cars in two different locations. The cars were moved from one spot to another. He said they got compliance out of one spot but created a situation in another spot. Ms. King asked if that was because the previous Ordinance did not include a Special Use Permit and if the BZA were to grant a Special Use Permit they would lose their Special Use Permit if they were not in compliant, or do we not have that kind of regulation. Mr. Anthony said it had nothing to do with a Special Use Permit but had to do with having the will and human power to carry out the Ordinance. He said zoning enforcement in our City is a task that is tacked on to someone’s roll. Mr. Anthony said Mr. Barbee has about five other rolls he fills for the City and zoning enforcement ends 6 BZA Minutes Regular Meeting June 26, 2019 up being one of those. Having the ability to go out and actually take care of those things, that becomes very difficult when limited on personnel to handle. Ms. King said under our current situation, if we were to grant this and they became a violation and that violation persisted because the conditions under the Special Use Permit if this was granted, they would lose their Special Use Permit if they became in violation of those and wouldn’t be able to operate as a business. Correct? Mr. Anthony said it could be treated a couple different ways: 1) it could be treated as a zoning violation, Brad could handle it, and we could work thru months or 2) as the City’s Appointed Administrator, he could revoke the Special Use Permit, they could come back and appeal and get granted again. He said we could go thru an endless cycle of how to deal with that. Mr. Anthony said from the department’s perspective, not granting it in the first place would be the preferred thing. Ms. King said she just wanted to understand procedures and said it seems to be a new thing for the BZA. Mr. Anthony said dealing with car dealerships is brand new due to the changes in the Zoning Ordinance. Mr. Anthony addressed of couple of things Mr. Rountree mentioned. The first is the Staff didn’t say “no”. Mr. Anthony doesn’t know how things were done previously, but he has no interest or desire to usurp Mr. Rountree’s authority and does not tell people “no” if they come in, present a legal application that meets the standards set forth in the Zoning Ordinance. He said we allow the application to move forward. We do not tell people “no” but advises repeatedly. Mr. Anthony issued a staff report about a week ago with the City’s recommendations, so hopefully this doesn’t come as too much of a surprise to Mr. Rountree or the applicant. Mr. Anthony said the other thing that Mr. Rountree mentioned was that the City does not want car lots and that is not accurate. Mr. Anthony said the City already has corridors that are covered with car lots. He said there are already buildings available. He drove by a lot this morning that is pre-approved because the lot already existed there. What the City does not want are car lots spreading into random spots throughout the community and setting some kind of precedence or expectation that now the next lot is available for a car lot also. He said car lots conglomerate, where there is one there is usually two or three, four, ten, twenty. The City is trying to avoid all new corridors from forming for car lots. In the City’s opinion, this is not an appropriate corridor or location for a car lot. Mr. Tipps said his first observation with SE Broad Street, traffic is an issue. He asked with a smaller type dealership / smaller type use as this, does it create that much more 7 BZA Minutes Regular Meeting June 26, 2019 traffic than already there. He said some of the other “by-right” uses that Mr. Anthony referenced, they would all pretty much guarantee increased traffic, maybe even more than a car dealership. Mr. Tipps said from reading thru Staff’s comments, as it referred to the different sections of the Zoning Ordinance it appeared that the main concern is this traffic issue and the other sections appears that the property met those. He asked Mr. Anthony and Mr. Barbee if he was missing that. Mr. Anthony said when Mr. Barbee evaluated, he determined that it either meets or potentially meets the characteristics Mr. Barbee agreed, stating it is possible for them to be met once it goes thru a full site plan approval. He said they have a conceptual site plan at this point that doesn’t have all the necessary requirements on there. In looking at the property, Mr. Barbee feels it is possible for them to meet that once a proper site plan has been submitted and approved. Mr. Tipps said if they have the opportunity with the proper plan that it meets everything that it should meet then we are back to traffic and we’re back to this grouping of a new applicant in the same boat as other violators. He asked if that was a fair statement. Mr. Anthony said he thinks that is fair, but he doesn’t think that is the whole story. He agreed we are having repeated issues with tons of car lots in town but thinks there is also compatibility in context issue that we talked about as well. Mr. Tipps asked if Mr. Anthony was referring to compatibility to the neighborhood where there is a mixture of retail, office, convenience store. Mr. Anthony said the compatibility is referring to having no car lots in this area. Mr. Tipps asked no car lots but mixed uses? Mr. Halliburton asked if the applicants did not comply with the Special Use Permit, if granted and the City revokes the Special Use Permit, then go thru the process and the applicants could then appeal, would they be appealing to this Board. Correct? Mr. Anthony said correct. Mr. Halliburton said they would have to, at that point not complied with the grant of the Special Use Permit. He said if the Board denies because they applicants did not comply, at that point are they out of business or no? Is it still a legal action that they can appeal? Mr. Halliburton was trying to find out where would this end. Mr. Anthony said they can apply for a Special Use Permit again. 8 BZA Minutes Regular Meeting June 26, 2019 Mr. Ives said let’s assume they are accused of violating. Mr. Halliburton said correct. Mr. Ives said let’s assume this Board finds they have violated and revoked the Special Use Permit. That decision can be appealed to the courts. Mr. Halliburton said ok. Mr. Ives said whether it would be or not and how long that appeal takes, anywhere from 3 months and 3 years depending on how hard someone pushes it and how backed-up the court is. After that, if they chose, they could appeal assuming they would lose at Circuit or Chancery Court, they could then go to the Court of Appeals. He said that process takes quite a while too. Mr. Halliburton said ok. Mr. Tipps said he can’t get into the minds of the investor when he purchased this property had in mind or what they thought. As its current use, it’s not going anywhere and at some point, it becomes, it may become an eye-sore and cause other problems to the neighborhood and what this plan will bring. Mr. Tipps said you look into what’s economically feasible and this is one of several ideas. Mr. Anthony pointed out there are at least 100 other uses, by right, that would be allowed on the subject site. Mr. Tipps asked if they would require a much larger investment than maybe this would. He said you have to make that financial decision and have the wherewithal to do those things. He said, as they say, you can’t put the toothpaste back in the tube once you’ve gotten so far with the property. Chairman Young does not want to lump them in with the other issues. He said you can see the issues with the other car lots but doesn’t want to assume that this lot would operate like some of those others. Chairman Young knows this intersection is busy and the character of the neighborhood are two big components for him. He said he would have a hard time with it, based on that. Just because they could have potential problems, he didn’t want to base his decision based on that and assume they are guilty before any violations occur. Mr. Tipps said concurred with Chairman Young. Ms. Foy asked why there are only two parking spots for customers. She asked if that is all they expect to have at any time. 9 BZA Minutes Regular Meeting June 26, 2019 Mr. Rountree said the City has done a great job, as far as trying to create safeguards. He wished it was so enforceable that the minute they violate you could pull their business license. He said that seemed like the logical thing if they were granted a special exception, you would not longer be in business. Mr. Rountree said, if that were the case, Mr. Barbee and Mr. Anthony’s jobs would be a lot easier. He said there would be a lot of empty spaces as it has been notoriously abused in the City, no question about it. Mr. Rountree said it is tough because the applicants saw an opportunity for a CH zoned property and it they could get a special exception, they could utilize the building without demo it at all. He has to retro-fit the whole site to be a dental office. He thinks the logic was there and the City never told the applicants “no” but as they moved through the process and met the expectations. Mr. Rountree said the expectations were almost impossible to meet and that is where the City has done well, whether they are not for a car lot or against car lots there would not be a lot of car lots coming into Murfreesboro anymore, based on the criteria. Mr. Rountree said it is not even site driven because a lot of the large lots still don’t have the capacity to unload on-site because of the way it is situated. He mentioned again, he saw five car lots in violation as they drove to the meeting today adding that would not happen today. He said the City is making sure if a car lot gets approved in Murfreesboro that it has the ability to function and it has the ability to work. This is not a large inventory type of business for the applicants, so they are taking a risk, however if you meet the criteria a special exception is required. Mr. Rountree said if everybody had to go through that process, 70-80% probably would not make it. He said the City has done a great job to create the criteria to make it very difficult to have a car lot. He said he was kind of shocked the applicants found a lot in the City of Murfreesboro that would work as a car lot. Mr. Rountree said the Zoning Ordinance states the number of cars, employee and customer parking spaces are based on the size of the lot. Again, Mr. Rountree said the applicants met the expectation of the Zoning Ordinance but the Ordinance is written so that when someone comes to buy a car has a place to park. Mr. Tipps made a motion to approve a special use permit in order to operate a motor vehicle sale (automobile sales) establishment in a Highway Commercial (CH) zone for property located at 2135 Southeast Broad Street because he believes it complies with the character of the neighborhood and traffic conditions. He said those conditions exists at a lot of other places in the City. The car lot is going to be arranged to be compatible and only interfere with adjacent properties. He said it is serviced adequately by facilities services, is not going to result in any damage, loss or destruction of natural scenic / historic importance, and complies with additional standards. Mr. Tipps said the motion also includes the following conditions: 1) Parking and display of automobile inventory shall occur only in areas designated in the special use permit application. Driveway aisles, public 10 BZA Minutes Regular Meeting June 26, 2019 right-of-way, and landscaped areas shall not be used for automobile parking or display. 2) Automobile parts and salvage/junk automobiles shall not be stored on any outdoors portion of the site. 3) All automobiles visible from the public right-of-way or lying adjacent to any area zoned for residential uses shall be operational. 4) Outdoor sound amplification shall not be allowed. 5) Automobile loading, unloading, staging, and maneuvering shall not be permitted within any public right-of-way. 6) Automobile service bays and overhead service area doors shall not be visible from any public right-of-way. 7) Hours of operation shall be limited to “daytime hours” as defined in the Murfreesboro Noise Control Ordinance. Mr. Barbee requested an 8th condition be required as follows: The Special Use Permit is null and void upon the sale or transfer of the property. Mr. Tipps agreed with the additional condition of approval: 8) The Special Use Permit is null and void upon the sale or transfer of the property. The motion was seconded by Ms. Foy. Mr. Halliburton said he understands where the Staff is coming from but if the applicant has met the plan design and the only kind of hold-up is the traffic, he is not sure that this use is going to be much different than any other use in reference to traffic. Mr. Halliburton told the applicant he will be the first to come to the City and contact Mr. Barbee if the applicant is unloading on Broad Street or on Keeneland and not using the space you are supposed to. Mr. Halliburton said he is not necessarily for this application but at the same time he doesn’t know how this Board could deny the request. Chairman Young said he will be voting “no” based on a judgement call on the character of the neighborhood and the traffic congestion that will be there. Mr. Rountree asked for clarification from Mr. Barbee about the 8th condition of approval. He asked Mr. Barbee if this gets approved, and they have a car lot on the subject property when they sell that property it goes back to straight CH zoning and there is no special use permit associated with it. Mr. Barbee said yes, that is correct. If the property is sold or transferred, the conditional use permit expires. 11 BZA Minutes Regular Meeting June 26, 2019 Ms. King verified the new owners would need to apply for a special use permit. Mr. Rountree asked the rules the new owner would need to apply for a special use permit. Mr. Ives said it is not uncommon for a special use permit to go to an owner or an operator and it expires upon the sale or transferred to another person. It doesn’t happen all the time, but it is the most common for a special use permit. Ms. King said this condition is on every mother-in-law apartment that she has ever seen. Mr. Tipps added also daycares have this condition. Mr. Rountree asked, to be clear, if the applicants got the property zoned as a car lot in the City and decided to sell it as a car lot without these applicants ever occupying it, the new owners would have to go back through the Board of Zoning Appeals. Ms. King said if there was a new owner, the new owner would have to come back through the Board of Zoning Appeals. Todays approval is only for the present owner. Mr. Rountree said thank you. Ms. King said this is difficult, the way she had discerned the factors the Board has to go through. She feels it weighs more in favor of the applicant, but it is very much on the edge. She said it is definitely challenging and she agreed wholeheartedly with Mr. Halliburton and his comments. She said I agree without question, let’s do it. The motion carried in favor with a 4 (yes) and 1 (no) vote. Chairman Young voted against the application. Staff Reports and Other Business Chairman Young announced it is time to elect a Chairman for the next year to serve on the Board of Zoning Appeals. Ms. King made a motion to reelect Chairman Young for the Chairman position. The motion was seconded by Mr. Halliburton and carried unanimously in favor. Chairman Young announced it is time to elect a Vice-Chair for the next year to serve on the Board of Zoning Appeals. 12 BZA Minutes Regular Meeting June 26, 2019 Mr. Tipps made a motion to reelect Mr. Halliburton for the Vice-Chair position. The motion was seconded by Ms. King and carried unanimously in favor. The meeting adjourned at 1:45 P.M. _____________________________ _______________________________ CHAIRMAN SECRETARY 13