When is a car wash like a restaurant?
When a failure to send out proper notice to nearby residents leads to problems for owners of rezoned property.
The Planning Commission, on a 6-4 vote Thursday, denied the planned unit development (PUD) for a proposed car wash at the intersection of Sage Avenue and Dauphin Street, based largely on the advice of attorney Jim Rossler.
Rossler, who was working for the commission because attorney Doug Anderson recused himself, told commissioners that the item in question was similar to an Alabama Supreme Court case from years earlier involving a restaurant called Roadhouse Grill.
In that case, Rossler said, the developer got zoning approval to allow an office building and retail shops. More than a year later, the same developer issued a PUD for the property showing a restaurant on the property. The PUD was approved by the commission and was upheld by the City Council on appeal. Owners of Cardinal Woods Apartments, an adjacent property, filed a lawsuit, Rossler said. The Mobile County Circuit ruled against the city. In City of Mobile v. Cardinal Woods Apartments on Jan. 8, 1999, the state Supreme Court ruled against the city as well and voided the original zoning, Rossler said.
“Letters failed to alert residents of the restaurant,” Rossler said. “The notifications were misleading.”
The situations between that case and the 2008 rezoning of the property at the corner of Sage and Dauphin are similar enough, Rossler said, to give the commission pause.
During the 2008 rezoning to commercial of the former Graf Dairy property, residents within 300 feet were sent letters explaining that the property would be rezoned to allow a bank. A first batch of letters sent to residents also explained that any other commercial use could be acceptable under the ordinance, Rossler said.
However, the initial hearing in 2008 was held over and a second batch of letters went out alerting residents to the commercial rezoning for a bank, this time without the caveat, Rossler said. The agenda for the meeting in question only mentioned the bank rezoning as well. The City Council ultimately approved the rezoning, Rossler said. The city advertised it and sent out written notices again. Once again, he said, the notices only referred to the bank.
“Our conclusion, it is sufficiently close to the Roadhouse Grill question to raise the issue,” Rossler said. “The same reasoning for the Roadhouse Grill case applies.”
He stopped just short of calling the notices that went out in 2008 “misleading.”
In both the Roadhouse Grill case and a case out of Phenix City, Rossler said the Supreme Court voided the rezonings in question. In this case, he said, the commercial zoning could remain as long as the condition that it be used for a bank remains. This opinion leaves the door open for the developer to ask for the conditions to be removed. That would require a vote of the City Council.
Councilwoman Bess Rich told fellow commissioners that she wanted to void the rezoning and have it revert back to residential.
“In two rulings … the rezoning is void,” she said. “For the life of me, I don’t understand how it remains (commercial.)”
Before the PUD was denied, Rich told commissioners she would not be satisfied with the zoning on the property remaining commercial. She argued that the zoning would open the property to a “laundry list” of commercial uses. Commissioner Jennifer Denson said the commercial zoning is not unlimited. Rossler reiterated that the commercial zoning only applied to a bank.
Commissioner John Vallas called the prospect of residents suing over changes to a PUD “scary.” He also argued that the 1998 case was not that similar.
“Roadhouse is different,” he said. “That was the same developer a year apart. This is 10 years and two owners.”
Casey Pipes, an attorney for developer Robert Myers, argued that his client wasn’t the applicant in 2008 and has given no misinformation to residents. Pipes said a car wash PUD was approved before Myers purchased the property for $675,000 in 2016. The plan was changed slightly, Pipes said, to allow for an access road to go around some big oak trees but remains “substantially similar” to the original PUD. The original PUD has expired.
“Rob’s not a banker,” Pipes told commissioners. “He’s not going to build a bank.”
Pipes argued that the PUD meets all the necessary requirements and that a car wash is allowed by right. Rossler had previously stated that because of the notice issue a bank was only allowed by right.
In other business, the commission voted to delay until June 21, a vote to allow the Infant Mystics to build a float barn and other plans near the intersection of Broad and Dauphin streets.