Pratt concurred. He noted that they are 100% occupied and Salon Lofts takes up the majority of Gay Avenue frontage.

4

Nicki Herrington asked for confirmation that there would be no additional retail use if this Board approves the variance.

Director Istenes confirmed; emphasizing that is true under the current building configuration.

Mr. King referred to staff’s report that noted that the occupancy permits were issued by the City and are valid and that staff has been working with them.

Mr. Pratt stated that utilizing the existing building is not practical.

Director Istenes reiterated that enforcement is directed to the property owner, not the tenants.

A brief conversation about how a negative result here would affect the tenants ensued. Mr. King stated that if the variance is denied, he believes the higher Courts would be hesitant to go against the owner in this case because there are occupancy permits in place.

Chairman Soule asked Mr. Heinz to offer an opinion.

Ken Heinz stated that due to the contested nature of this case, he believes that further discussion would fall under attorney/client privilege.

Mel Disney questioned how this affects the City’s “big picture” and the spirit of the ordinance.

Director Istenes noted that it’s difficult to say; the overlay district was implemented as a result of the City’s overall master plan, but being slightly less than 50% she can’t say it would have a great deal of impact.

Mel Disney commented that there are areas where retail is desired.

Rick Bliss asked what adverse effect enforcement would have here.

Director Istenes indicated she can’t answer that; she’s not an attorney. She stated that she agrees this is a unique circumstance here and that there have been plans to address the issue, but 3 years have gone by.

Mr. Heinz indicated that he would prefer not to comment. He said that this could be continued until the next meeting and in the interim, the Board could seek a legal opinion.

Nicki Herrington commented that this is a difficult corner in which to lure tenants and that there is hardly any foot traffic there, not to mention lack of parking. She added that she is happy that the entire perimeter here is not empty.

Mel Disney commented that there is a multi-family building at the southwest corner.

Nicki Herrington agreed.

Mel Disney commented that there is a multi-family building at the southwest corner. Nicki Herrington agreed.

5

Chairman Soule made reference to a former appeal submitted by Wolfe Properties in which the applicant was seeking a use variance which was ultimately denied; however, that space was in a different section of Maryland Avenue. He asked what other properties are in the MGOD.

Director Istenes indicated that the District includes properties on the north and south sides of Maryland Avenue from the west city limits to the centerline of Brentwood Boulevard.

Chairman Soule added “from Companion to Saville Row”.

Director Istenes stated that the objective of the District long term is to encourage certain uses and that the area will include new apartments and new restaurants; that this area will be vastly different and that’s why the overlay is in place.

Mary DeBenedetti stated that she agrees with Nicki; not every corner can support retail and that we should appreciate what we have.

Chairman Soule indicated that use variances are rare.

Director Istenes agreed.

Chairman Soule asked the Board members if they wanted to go into executive session with Mr. Heinz.

The Board declined.

Chairman Soule asked if the City had any more information to offer.

Director Istenes and Ken Heinz replied “no”.

Chairman Soule asked Mr. Heinz if he had any issue with Applicant’s Group Exhibit 1.

Mr. Heinz replied “no”.

Chairman Soule called for a motion.

Rick Bliss made a motion to grant the variance as requested (to allow 43.45% retail, restaurant or personal care service to occupy the first floor versus the 50% as required by the MGOD). The motion was seconded by Mary DeBenedetti and received unanimous approval of the Board.

Being no further business for this Board of Adjustment this evening, the meeting adjourned at 6:03 p.m.

Staff informed the members that there will likely be a meeting in November.

_________________________ Recording Secretary