October 6, 2016 — Meeting Minutes

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MINUTES BOARD OF ADJUSTMENT OCTOBER 6, 2016

ROLL CALL: Rick Bliss

Susan M. Istenes, AICP, Planning Director Mel Disney

Ken Heinz, Acting City Attorney Nicki Herrington Mary DeBenedetti Chairman Gary Soule

Chairman Soule called the meeting to order at 5:00. He welcomed everyone to the meeting and welcomed new member, Nicki Herrington, to the Board. He noted that there is only one item for consideration this evening and that there was a full complement of the Board (5 members) in attendance. All Board members and city staff introduced themselves.

The transcription of the September 1, 2016 meeting was presented for approval and some minor corrections were noted. The recording secretary indicated that she would supplement the transcription with a note of the necessary changes. The transcription was then approved, as amended/corrected, after having been previously distributed to each member.

APPEAL FROM JOHN P. KING, ATTORNEY FOR GREENSTREET, OWNER, FOR A USE VARIANCE FOR THE PROPERTY ADDRESSED 8451 MARYLAND AVENUE

Those wishing to speak were sworn in by Kathy Scott, Planning Technician/Recording Secretary.

Chairman Soule asked if the City had any exhibits to present with regard to this appeal.

Acting City Attorney Heinz presented the following exhibits:

A. City of Clayton Code of Ordinances & City Master Plan B. Zoning Review Application & Denial Letter C. Appeal Application D. Drawings submitted by applicant E. Staff Report

Chairman Soule asked the applicant if he had any objections to these exhibits being made part of the record.

Mr. King replied “no”.

Chairman Soule indicated that the exhibits would then be made part of the record.

Mr. King indicated that he is representing Greenstreet, who bought the BMW property on Maryland and re-did the building. He stated that they are now requesting a variance to allow

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43.45% of the first floor to be retail [restaurant or personal care service] as opposed to the 50% required by Code.

Mr. King informed the members that Brad Pratt, Executive VP of Greenstreet St. Louis, will testify as to what happened and why the variance is being requested. He then made reference to the Maryland Gateway Overlay District (MGOD), which was adopted a few years ago, stating that he believes this is the first time an appeal of these regulations has been heard. He distributed a packet of information which was marked as Applicant’s Group Exhibit 1.

Mr. Pratt informed the members that efforts were made to comply with the [MGOD] ordinance and that they had been interacting with City staff about the minimum 50% first floor retail requirement. He indicated that a 1,425 square-foot addition was constructed to the rear of the building for Schwab; in the meantime, the garage was renovated for Salon Lofts. He stated that one solution to the use issue was to incorporate additional retail space in the garage; however, that presents a problem in that not only because of the location of the driveway and the need for ADA parking spaces, but feedback from a few potential tenants (pizza place and bicycle repair shop) was that there would be no visibility of the space to the street. He added that the parking garage is essentially full during the day and that there is no customer parking to the east and Maryland Avenue only has one lane of on-street parking. He noted that they consider Schwab to be a retail use as although they don’t sell “goods”, they sell a financial service product; however, staff does not agree with that assessment. He informed the members that when they purchased the property, they believed they understood they could achieve the objectives of the MGOD.

Rick Bliss asked why they are here now.

Mr. Pratt informed the members that the property is under contract. He added that they had previously discussed the appeal process with staff.

Rick Bliss noted that if they (Greenstreet) had acquired other properties, they would not need to be here.

Mr. Pratt agreed.

Chairman Soule mentioned Northwest Coffee.

Director Istenes concurred.

Mel Disney questioned the occupancy permits that were issued for the two tenants (Salon Lofts and Schwab).

Director Istenes indicated that the occupancy permits are not related to the deficiency.

Mr. Pratt noted the building’s full renovation.

Mel Disney commented that they don’t have the required square footage.

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Mr. Pratt concurred.

Gary Soule noted that occupancy permits run with the tenant and regardless of the decision here this evening, those occupancy permits remain valid.

Director Istenes confirmed.

Mel Disney asked about the leases.

Mr. Pratt indicated that the initial lease for each tenant is 10 years.

Mel Disney commented that this is really then only advantageous to a potential purchaser.

Mr. Pratt agreed.

Chairman Soule stated that even if the building is sold, the rights under the current tenant leases remain in effect.

Mr. King stated that the leases would not be affected by the sale of the property.

Chairman Soule noted that if Salon Lofts exercises all of its rights in their lease, the lease would not expire until June of 2039; Schwab, February of 2035.

Mr. King stated that is accurate.

Director Istenes explained that leases don’t determine when the City pursues compliance and that the City was working with the owner since before these tenants took occupancy; although there was some commitment on the owner’s part to build out the garage and/or combine their property with property to the east. She emphasized that the City can initiate zoning action at any time. She added that this is somewhat of a dilemma and that they won’t hold the tenants “hostage” and that additional space could be created from existing space, which has nothing to do with the occupancy permits.

Mel Disney commented that the property owners have had 3 years and have elected not to expand but put forth a good faith effort and are now here seeking a variance.

Mary DeBenedetti asked why 50-percent?

Director Istenes stated that was the minimum percentage chosen by the Board of Aldermen at the time the MGOD was adopted; noting the desire for ground floor retail use.

Nicki Herrington noted that the entire Maryland frontage is Schwab.

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

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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.

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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

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