Citing the complicated nature of the decision, the city’s Board of Zoning Adjustment delayed a vote on a variance to allow a car wash at the southeast intersection of Dauphin Street and Sage Avenue during its meeting on Monday, Dec. 3.

Instead, the board will likely vote at the next meeting, slated for Jan. 7. At issue is the amount of paperwork attached to property development proposals dating back a decade.

“This is probably one of the more complicated applications we’ve received since I’ve been on the board,” member Jeremy Milling said.

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Casey Pipes, an attorney for applicant Robert Myers, asked the board to consider two items on its agenda. The first was an administrative appeal of a decision to limit the commercial classification of the property to the proper zoning for a bank or drug store.

Board Chairman William Guess said the group would not consider the appeal because it was a decision of the Planning Commission upheld by the City Council and the BZA was not the proper venue for it.

Pipes then requested the board hear arguments on why Myers was entitled to a variance. Guess agreed it was appropriate.

The issue goes back to 2008 when the property was originally zoned commercial. At first residents were notified the property would be rezoned to allow a bank and a drug store. When a first batch of notifications were mailed, words were added implying all other commercial uses would be applicable, attorney Jim Rossler told the Planning Commission in May.

However, the initial hearing in 2008 was held over and a second batch of letters were mailed alerting residents to the commercial rezoning for a bank, this time without the caveat, Rossler said. The agenda for the meeting at the time 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 a bank.

The confusion over notifications means that a previous, unrelated state Supreme Court ruling applies, Rossler argued. In what he referred to as the “Roadhouse Grill case,” Rossler said the state’s high court used evidence of a similar notification problem to void the zoning to allow a restaurant. The Planning Commission voted along a tight 6-4 margin to reject the planned unit development for the car wash.

Rossler, who is working on the city’s behalf, was in attendance at Monday’s meeting but did not speak and was not asked any questions.

Pipes admitted the variance request Myers was seeking was “unnecessary” because the hardship was caused by the city. In looking for property for the car wash, Myers settled on the commercially zoned piece at the intersection of Dauphin Street and Sage Avenue and put it under contract.

Myers applied for the PUD, which was initially recommended for approval, Pipes said.

“No one mentioned it was limited to a bank or drug store,” Pipes said. “It was zoned B2. There was no voluntary use restriction from 2008.”

In 2016, the original PUD was approved and Myers bought the property for $675,000. The project was delayed because of the placement of trees on the property and the PUD expired. Myers re-applied in 2018 and sparked the interest of neighbors, Pipes said.

“It was the same car wash with a different road on it to avoid trees,” he said. “The car wash was denied.”

Pipes argued nothing between 2016 and 2018 had changed, except for the Planning Commission members’ minds. “It’s … unjust and unfair to stick him with a lot that was downzoned after the fact,” he said. “The hardship is he has over $675,000 in this property that’s essentially worthless.”

The only remedy — aside from the current hearing — is to sue the city, Pipes said, but they were trying to avoid that.

Donald Stewart, an attorney representing neighbors of at least two nearby neighborhoods, said allowing the car wash with 36 vacuum stalls to operate year-round would be “a profoundly bad idea.” However, he argued the legal merits of the neighbors’ case. Stewart said there’s a “high threshold” to grant a variance and potential “economic loss” cannot be considered. He added there is no evidence the property is “worthless,” as Pipes claims.

“He doesn’t have an economic loss and even if he did that wouldn’t be the basis for a variance,” Stewart said. “He may or may not have a claim for damages, but he’s not entitled to a use variance.”

In a short rebuttal, Pipes argued while economic loss is not normally considered for a use variance, it can “when the burden is not common to the public at large.” In this case, Pipes argued Myers did suffer differently than the public would, given he initially got all the approvals he needed and a car wash is normally allowed in a B2 zoning area.

Several residents spoke against the variance, including Rose McPhillips, a relative of the original owners of the former Graf Dairy property. She has been present at a number of previous hearings about the property and says she doesn’t remember getting notice in 2016, despite living within 300 feet of the property.

Planner Margaret Pappas told the board the 2016 notice wouldn’t have mentioned a car wash because it was to allow a shared driveway. McPhillips said even if it had not mentioned the car wash she would’ve looked it up.

The board could vote as early as the next scheduled meeting on Monday, Jan. 7, 2019.