January 5, 2017

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MINUTES BOARD OF ADJUSTMENT JANUARY 5, 2017

ROLL CALL: Mel Disney

Susan M. Istenes, AICP, Planning Director Liza Streett

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

Chairman Soule called the meeting to order at 5:05 p.m. He noted that there are two items, but one applicant/1 property, 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 minutes of the December 1, 2016 meeting was presented for approval. Liza Streett noted that some language was missing from the second sentence of the following paragraph found at the bottom of Page 1; the sentence was altered to read as follows: “Mr. Duncan indicated that he prepared the drawings and the pergola is made of a series of various size planks. He added that the project also includes a screen/lattice to provide privacy.” The minutes were then approved, as amended, after having been previously distributed to each member.

APPEAL FROM JOHN DUCKWORTH, MANAGING MEMBER, TRUE TITLE COMPANY, OF A DECISION OF AN ADMINISTRATIVE OFFICER OF THE CITY REGARDING USE OF PROPERTY ADDRESSED 30 NORTH BRENTWOOD BOULEVARD AS A TITLE COMPANY & AN APPEAL FROM JOHN DUCKWORTH, MANAGING MEMBER, TRUE TITLE COMPANY, FOR A USE VARIANCE TO ALLOW TRUE TITLE COMPANY TO OCCUPY THE GROUND LEVEL TENANT SPACE AT THE PROPERTY ADDRESSED 30 NORTH BRENTWOOD BOULEVARD

Skip Dufour, attorney representing owner, was in attendance at the meeting.

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. Appeal Application C. Correspondence D. Staff Report E. Zoning Map

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

Mr. Dufour replied “no”. He noted that much of the evidence and testimony overlaps between the two appeals.

Chairman Soule agreed.

Mr. Dufour distributed a packet of information.

Chairman Soule stated that will be marked as Applicant’s Group Exhibit 1.

Mr. Dufour agreed. He stated he assumed that the reports were read by the Board members and noted that others will testify on the applicant’s behalf. He stated that they were surprised by the City’s decision to deny the issuance of an Occupancy Permit as they (True Title) are now at 21 North Meramec Avenue, which is in the same overlay district as where they want to relocate to at 30 North Brentwood Boulevard. He stated that they were granted an Occupancy Permit in 2012 for their current location on North Meramec Avenue and have each year received a business license. He stated that they did not believe it would be a problem to move and that after they were informed that an Occupancy Permit would not be issued, they researched the City’s ordinances and recognized that they had two options: error by municipal officer and a use variance, for which he believes they qualify for either of them because occupancy was approved by the City in 2012 for a property in the same zoning overlay district and because they believe that their business is retail in nature; there can be no real estate transaction without a title company’s involvement. He stated that he believes there are other businesses in the overlay district that are not as retail in nature as theirs, including Elm Street Properties (occupied post 2004) and KP Development. He reiterated that the City’s Code is loosely worded and he doesn’t know how the City came to the decision to deny them occupancy and that they will not set a precedent that hasn’t already been established.

John Banjak, attorney representing the tenant (True Title) stated that he is one of three principals of True Title and has been since they opened and that he has been in the title business since he graduated in 1992; he added that he has also worked with [the late] John King.

City Attorney Heinz noted that to clean-up the record, testimony should be considered for both matters and suggested the Board vote on that.

Chairman Soule agreed.

Mel Disney asked if it is typical for someone to seek a variance when an occupancy permit is denied.

Director Istenes replied “yes”.

Mel Disney asked for confirmation that if the occupancy permit they requested had not been denied, they would not be here.

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Director Istenes confirmed.

Mr. Banjak commented that if this Board upholds staff’s determination, then they will proceed with the request for the use variance.

City Attorney Heinz reminded the Chairman that he will need to read the exhibits into the record for the second variance request should it proceed forward.

Mr. Banjak indicated that he was going to proceed using the question/answer method.

City Attorney Heinz indicated that he would object if necessary.

Mark Mottaz, majority owner of Community Title (Community Title is 1/3 owner of True Title), stated that the administrative and office functions take place in Alton, which is their current headquarters which they plan to move to this ground floor space on Brentwood Boulevard.

Photos of their current location on North Meramec and proposed location were shown. Mr. Mottaz stated that they want a high visibility space and in the center of the market they are trying to serve.

Mr. Banjak presented a map of the overlay district where the subject property and current property are located.

Mr. Mottaz noted that the Occupancy Permit for their current location on North Meramec was issued on October 12, 2012. He informed the members that they are moving because their current building is being sold and that they had a letter of intent to occupy the Brentwood Boulevard location 1.5 years ago and he saw the language about the allowable uses and believed they met the definition. He indicated that they generate a lot of in-and-out activity and attract all types of people such as developers, lenders, attorneys, builders, etc.

Robert Heyder, real estate investor, stated that he does business with True Title and sometimes just drops-in to have documents notarized, pick up checks, etc.

Kelli Almond, owner, Almond’s restaurant, indicated that she has been to True Title for social events and real estate transactions.

Mr. Banjak asked Ms. Almond if she had any objection to True Title occupying the space.

Ms. Almond replied “not at all”.

Amer Abovwardah, owner of Oceano Bistro, (corner of Maryland Avenue and Brentwood Boulevard) stated that it would be difficult for a restaurant to go in that space and that True Title personnel come in to Oceano with clients almost once a week and that he has no objection to True Title occupying that space.

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Chairman Soule called for a 5 minute break. (6:10 p.m.).

The meeting reconvened at 6:15 p.m.

Jill Butler, Clayton resident of 16 years (7601 Maryland Avenue), owner of a real estate brokerage firm, stated that she, too, has visited True Title for social events, meetings, etc. and that agents like to get in and get out and that a title company needs to be easily located and provide easy access.

John Duckworth, President of True Title, stated that they have 7 closing offices in the St. Louis area.

Nicki Herrington questioned what the previous testimonies have to do with a variance.

Mr. Banjak asked Mr. Duckworth if the character of the neighborhood would be altered if they’re allowed to occupy the space or if the district (zoning) map would change or if their occupancy would have an impact on light or air to surrounding properties.

Mr. Duckworth replied “no”. He added that they did an exhaustive search before they decided on the 30 North Brentwood Boulevard location. He stated that they performed 1,291 closings in 2016 and served 4,000 people.

Mr. Banjak asked if they plan to redesign the space.

Mr. Duckworth replied “yes”; noting that they would like to add windows.

Mr. Banjak asked Mr. Duckworth if they receive walk-in customers.

Mr. Duckworth replied “yes”; adding that they provide notary services as well.

Mr. Banjak asked Mr. Duckworth if he would consider his business a consumer service.

Mr. Duckworth replied “yes”.

Mr. Banjak thanked the Board for their time and added that his client’s business has been successful and would like to continue their success down the alley (at the new location).

Chairman Soule informed the applicants that it is important for them to remember that this Board’s power is very limited.

Mr. Banjak concluded his presentation by stating that the City’s ordinance allows real estate businesses in this District and that they close real estate transactions and perform functions similar to that of a bank. He added that he has no idea why the City issued an Occupancy Permit in 2012 and asked that the Board approve their request.

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Chairman Soule asked Director Istenes to speak to the purpose of the Downtown Overlay District.

Director Istenes read the “Purpose Statement” (Section 410.135.a): The Downtown Overlay Zoning District (hereinafter known in this Article as the DT Overlay District) applies to selected blocks in the High Density Commercial District which have been targeted to remain retail centers. The area encompassed in the Downtown Overlay Zoning District is adjacent to the heart of commercial and service activities in the City of Clayton. Similar to the CBD Core Overlay Zoning District, the Downtown Overlay Zoning District is intended to maintain a "pedestrian friendly" setting, but allows for additional height with stepback provisions. In order to maintain this area as "pedestrian friendly", structures must be human in scale. Building mass, density and frontage variations should create a visually attractive and inviting streetscape within the urban context.” She added that office uses are acceptable uses except on the ground floor where the intent is to draw pedestrians inside for the purpose of purchasing a product or receiving a personal service.

Chairman Soule asked staff’s interpretation of “retail”.

Director Istenes stated that retail uses (i.e. restaurant, shop/store, etc.) generate sales tax revenue; where money is exchanged for some type of product.

Chairman Soule noted that the witness discussed their business generated by people who come to True Title and then go out to lunch/dinner afterwards. He asked for confirmation that this type of business is not what the Ordinance intends.

Director Istenes concurred; noting that all offices generate spin-offs into lunch, etc. She added that the HDC (High Density Commercial) District is the broadest and allows all types of uses; the overlay district for which the subject property is zoned restricts ground floor uses. She reiterated that it is her opinion that this is an office use; not a retail use and that she would have the same opinion if this was an insurance office.

Nicki Herrington stated that she does not disagree with Susan; she added that she’s been a realtor for 31 years and it took her 2 ½ years to find an appropriate space. She stated that it seems that any business is better than leaving a space vacant and noted that there are office uses across the street and to the north and that she would like to grant the appeal.

Chairman Soule called for a 5 minute break (6:50 p.m.).

The meeting reconvened at 6:55 p.m.

Liza Streett commented that she is concerned that there is not enough retail in Clayton and wonders if the City is trying to correct an error made in 2012.

Director Istenes stated that there are non-conforming uses in the City; some of which pre-date 2004 and that the City does not force people out. She added that she is not sure what happened in this case (in 2012), but that an error did occur and that zoning reviews are now conducted

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regularly. She stated that her suggestion of a preferred option would be that the Board of Aldermen consider amending the Overlays rather than overturning staff’s determination, as that would open up many possibilities for future tenants.

Nicki Herrington asked the Director’s thoughts on the variance.

Director Istenes stated that it is her job to enforce the zoning laws as written and that granting a use variance is different than overturning her determination; she added that the code states that the applicant must prove hardship and it is this Board’s job to determine if they have done that.

Chairman Soule noted that this Board does not have the authority to overturn or rewrite ordinances.

Mary Debenedetti suggested voting on the variance request.

City Attorney Heinz reminded the members that they need to vote on the first appeal (alleged error my municipal officer).

Nicki Herrington made a motion to deny the appeal alleging an error by the municipal officer of the City [in this case, Planning Director Susan Istenes] and thereby upholding Director Istenes’ determination that the proposed use is not an allowable use under the Code; the motion was seconded by Mary Debenedetti and unanimously approved by the members.

Chairman Soule noted that the first appeal is thereby denied.

Mel Disney referred to an earlier statement made by Director Istenes that the Board of Aldermen could be asked to amend the Ordinance. He asked how long that process generally takes.

Director Istenes indicated that a text amendment takes approximately 3 months; a new overlay takes about 18 months.

Mel Disney commented that this Board has determined that no error occurred; noting that the company {True Title} has been in Clayton for a long time and that time frame would not be in their best interest.

Chairman Soule stated that this Board can grant an exception and provide relief.

Director Istenes stated that if an exception is allowed, the exception would only be granted to True Title for this particular space, so no precedent would be set….each application is considered on its own merit.

Nicki Herrington asked for confirmation that an exception would not be able to be transferred to another future title company.

Director Istenes confirmed.

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Chairman Soule asked for confirmation that an Occupancy Permit was issued by the City in 2012 for True Title to occupy 21 North Meramec Avenue.

Director Istenes replied “yes”.

City Attorney Heinz read the City’s Exhibits into the record (for the second appeal):

A. City of Clayton Code of Ordinances & City Master Plan B. Denial from the City C. Application for Appeal D. Staff Report

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

Mr. Dufour replied “no”.

Chairman Soule asked Mr. Dufour if he wanted to offer the same exhibits into the record as was offered for the first appeal.

Mr. Dufour replied “yes”.

City Attorney Heinz reminded the Chairman to inquire as to whether anyone in the audience wanted to speak in opposition to the requested variance.

Chairman Soule asked if anyone in the audience wanted to speak against the requested variance.

There were no responses.

Chairman Soule noted that the staff report had been received. He asked if staff believes that granting this variance would negatively impact light or air to adjacent properties.

Director Istenes replied “no”.

Chairman Soule asked if staff believes that granting this variance would be a detriment to safety.

Director Istenes replied “no”.

Hearing no further comments or questions, Chairman Soule called for a motion.

Nicki Herrington made a motion to grant a use variance to True Title Company to allow them to occupy ground level tenant space at 30 North Brentwood Boulevard as requested. The motion was seconded by Mary Debenedetti and received the following roll call vote: Ayes: Mel Disney, Nicki Herrington, Mary Debenedetti & Chairman Soule. Nays: Liza Streett. Motion carries and the variance is granted.

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Being no further business for this Board of Adjustment this evening, the meeting adjourned at 7:20 p.m.

_________________________ Recording Secretary