Lawyers on both sides of the Chelten Plaza controversy agree on one thing: That a Zoning Board of Adjustment decision issued Tuesday was a punt of sorts, and that City Council will likely make the ultimate ruling.
On Tuesday, the board issued a much-anticipated ruling denying the appeal of developer Patrick Burns’s permit to build what he described as a grocery store in a retail space in the under-construction shopping center at Chelten and Pulaski avenues.
But that didn’t close the case, as the zoning board remanded the case back to the Department of Licenses and Inspections for further review, to take into account testimony presented at the Sept. 28 permit hearing.
At the hearing, L&I code administrator Jeanne Klinger testified the department issues permits based on the information applicants submit, and said the agency does not have the resources to investigate each application in advance. The zoning board’s finding was that L&I had “properly issued the challenged permit based upon the information provided to the applicant.”
The problem, said Yvonne Haskins, the lawyer who filed the appeal on behalf of a coalition of Germantown civic groups and neighbors, is that Burns’ lawyer didn’t give L&I complete and accurate information about what tenant would be in the space.
“We are confused by [the decision], we are disappointed by it, but now it’s back in L&I’s lap,” Haskins said yesterday. “It seems to me that one can never get relief if an applicant misrepresents their intended use. It just goes around in circles.”
L&I spokeswoman Maura Kennedy referred questions about the ruling to individual zoning board members. ZBA chairwoman Lynette Brown-Sow is traveling out of the country this week, and board secretary Carol B. Tinari could not be reached for comment Wednesday.
Further complicating the issue is the fact that the zoning board’s ruling didn’t give a timetable or deadline for when L&I should issue a new opinion on the Dollar Tree permit. Meanwhile, a bill sponsored by Councilwoman Donna Reed Miller that could make the whole zoning controversy a moot point continues to make its way through City Council.
Last week, Miller introduced a bill that would change slightly the zoning overlay that covers Germantown’s commercial district, to allow variety stores of 7,500 square feet or more.
The measure was referred to council’s Rules Committee, which next meets on Oct. 27 and Nov. 1, though it’s unclear yet if Miller’s bill will be have a hearing on either of those days.
Burns’s position has been that the Dollar Tree is a grocery store, not a variety store, a use banned under the Lower and Central Germantown Special District Controls. Pulaski Partners is continuing to look toward City Council for a solution, his lawyer said yesterday.
“Although it is always good to win, I still think the best action is to clarify the overlay and it seems that [Miller’s] recently introduced ordinance will do that,” said Carl Primavera, Burns’s attorney.
He said he believes Chelten Plaza opponents were confusing L&I’s role in issuing permits with its enforcement role once a business opens, and the real proof about whether Dollar Tree is a variety store or a grocery store will ultimately come once the store is in operation.
“For example, if the code allows an eat-in restaurant, the city has to give a permit. But if the restaurant opens and it is a Domino’s take-out pizza parlor, the city can issue a violation and tell the operator to get a takeout permit. But the restaurant permit is still good, as the code allows such a use,” he said.
Haskins blasted Miller’s bill as being custom-made to help Burns’ development, and said she has little faith that Council will be of much help.
“That’s what I worry about, that we’re now vulnerable to the shenanigans going on in City Council,” she said.
Miller’s office has said the amendment to the zoning overlay was needed to help it fulfill its goal of keeping out small, low-end variety stores while allowing for larger, stable retailers.
Contact Amy Z. Quinn at email@example.com