71st & Harvard: City attorneys look for loopholes


The 71st & Harvard zoning controversy will come before the City Council this Tuesday morning in committee and at the regular Thursday night meeting. By a 7-1 vote, the planning commission (TMAPC) approved a zoning change from residential to light office to accommodate a proposed F&M Bank branch on what is now vacant land. While the bank may not have a detrimental effect on the surrounding neighborhoods, neighboring property owners are concerned that this change would set a precedent for rezoning residential land to commercial even when such a change is out of accord with the Comprehensive Plan.

Nearby property owners are concerned enough to file a formal protest with the City Council. The owners of over 50% of the property within 300 feet of the proposed change have signed on to the protest. By state law and city ordinance, such a protest means that the zoning change must be approved by 3/4 of the City Council (7 members of the 9) in order to be enacted. Three Councilors could block the change. This is a safeguard to protect neighboring property owners from arbitrary zoning changes.

There is a complication with the protest. Guier Woods, which constitutes the majority of the land within 300 feet of the proposed F&M site, is platted as a single lot owned as condominiums. Patrick Boulden in the City Attorney's office has written that the area of Guier Woods can't count toward the 50% unless every owner of every condominium, both husband and wife, sign the protest.

This is a nonsensical interpretation of the law which makes it impossible to mount an effective protest -- unless Guier Woods owners are unanimous (no opposition, no abstentions), 50% cannot be reached, even if the remaining property owners within 300 feet are unanimous in their opposition. While Guier Woods may be a single lot, units are bought and sold separately along with a share of the elements in common (e.g. the gatehouse). Units are also taxed separately by the county. Either the separate units should be treated as separate properties, or else Guier Woods's duly elected board should be able to protest on behalf of the entire development.

To illustrate the absurdity of Boulden's interpretation, imagine that one of the lots was owned by a public corporation -- by his approach, every shareholder of the corporation would have to sign the protest before that lot's area counts toward the 50% requirement.

This Tuesday, Councilor Chris Medlock will be putting forward a proposal to clarify the requirements for filing a protest, in accordance with a common sense interpretation of the state law. Without some clarification, an important safeguard for property owners will be neutralized by a technicality.

UPDATE: The minutes of the planning commission meeting, with details of the proposal and comments from commissioners, attorneys, and interested parties are online here, on pages 2-23.

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This page contains a single entry by Michael Bates published on October 6, 2003 12:30 AM.

41st & Harvard: Is the Comprehensive Plan meaningless? was the previous entry in this blog.

Are one-armed bandits more trustworthy than voting machines? is the next entry in this blog.

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