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BZA Meeting - January 17

We think the Board has erred
Warwick Jones, Editor

At its meeting on Tuesday night, the Board of Zoning Appeals unanimously approved exceptions to the Zoning Ordinance's parking requirements as requested by the developer of 418 Meeting Street, the principal of which is Council member Fishburne. It deferred a decision at its previous meeting because of uncertainties about the duration of the lease for use of a City parking garage built with tax-exempt bond funds. The major issue was whether the lease could be construed as long-term in order to meet the parking requirement of the Zoning Ordinance.

The developer has an obligation under the ordinance to provide parking for 47 cars. If all parking cannot be provided on site then the balance must be within 400 ft of the building and under a long term lease. The developer sought to locate 30 spaces at a parking garage 580 feet from the development.

City submits amended lease
What persuaded the board to grant the exceptions to the developer was an amended lease, and a letter from the Deputy Corporation Counsel of the City stating that, in her opinion, the lease obligated the developer to lease parking spaces at the Visitors Center garage for 10 years or more. The board considered the lease and letter, sought comments from the public and the developer, discussed the issue and voted unanimously in favor of the exceptions - That was it.

No opportunity for public to view lease
Or was it? The amended lease and the letter, dated the day of the meeting, prepared by the City's counsel was submitted to the Board during the meeting on Tuesday. Copies of the new lease and letter were handed to the board members at the meeting. Whether they had seen copies before the meeting we cannot say. But as all seemed to read those handed to them, it seems fair to say they hadn't. Of course the timing of the distribution gave no opportunity for the public to view and comment on the lease and opinion. In this particular case, the public may well have had an opinion on both.

New lease does not obligate City to 10 years
The amended lease now includes both the original provision permitting the City to terminate the lease at any time and a new provision requiring the developer not to terminate it before the end of a ten-year period. We ask, surely reasonably, doesn't the City's ability to cancel the lease whenever it wishes undermine the developer's obligation not to terminate for ten years? Or to ask the question differently, is a lease to which one party must adhere for ten years really a ten-year lease if the other party can cut the lease short at any time before the end of the ten years? Yet the Zoning Board apparently had no trouble determining that it was a ten-year lease and that it therefore met the parking requirement of the Ordinance, which states in Section 54-319 as follows:

Off street parking spaces provided pursuant of this section shall be located upon the same lot of record as the use to which they are associated. However if the property does not provide sufficient off-street parking on site, parking may be provided on a properly zoned lot within 400 feet of the building or use, provided, however, that a satisfactory long term lease of at least 10 year is provided to and approved by the zoning administrator (such distance shall be measured from the nearest point of the parking lot to the nearest boundary of the property on which the building or use is located that the parking lot will serve).

Spaces are not allocated
There is also another important factor. The lease expressly states that the developer does not have allocated spaces. If the parking lot is full at any time, there is no obligation to provide the developer with alternative space. This will mean that parking will "spill over" on to the street, precisely what the ordinance was trying to avoid.

City has dilemma
We understand the dilemma of the City in trying to satisfy both the Zoning Ordinance's parking requirements with a ten-year lease and an IRS regulation that requires that any lease to a private business of a facility funded with tax-exempt bonds be for no more than 200 days. The latter is a significantly shorter period of time than required by the Zoning Ordinance. Nevertheless, it seems to us that the City's choice was either to leave the lease as first drafted, allowing the developer to accept the successive six-month lease renewal options so as to satisfy the IRS regulation but not satisfy the Zoning Ordinance or to add to the lease the obligation that the developer not terminate the lease for ten years so as to satisfy the Zoning Ordinance even if that jeopardizes the tax-exempt status of the bonds that financed the City's garage. Trying to satisfy two incompatible requirements at the same time has made a hash of the lease and perhaps of the bonds.

There are broader issues involved
We feel disturbed about both the City's and the Zoning Board's apparently cavalier disposition of the issues involved. In so far as the Zoning Board is concerned, it is not just the issue of the 418 Meeting Street development, but a broader issue. We are concerned about the development that is taking place in Charleston, much of which is unsightly and destroying the historic fabric of the City. We do not oppose development at 418 Meeting, only its proposed scale.

We and others have voiced our objections but are frustrated by many of the decisions by the City zoning bodies. Most times we have asked that present ordinances be applied, or variances and exceptions restrained. We feel that often the Boards are more swayed by the plans of the City administration than the views of the city's residents. And sometimes the events relating to developments seem mysterious, and therefore suspicious.

For example, the lease agreement between 418 Meeting St developer and the City still looks like a short-term lease. That the original lease submitted to City Council was short-term and contrary to the ordinance seems inarguable in the light of the amended lease. Why didn't the City tell the BZA it was only short term and contrary to the ordinance? Why wasn't the second lease and opinion of City counsel given a wider hearing or scrutiny? With no opportunity to see the documents before or during the meeting, differing views could not be expressed before the meeting and indeed, the expression may have made no difference.

In addition, public suspicion was not helped by the Mayor praising this development at the last City Council meeting. And then there is Mr.Altman who chaired the BZA hearing when the developer's request for exceptions was first heard. He voiced some concern about the nature of the parking lease at that time. Yet he recused himself from last night's decision without an explanation. Why? And then there was the Historic Charleston Foundation, which at the first meeting was critical of more than merely the parking problem but was silent at the last.

In our view, the BZA has erred in its decision. There is no long term- lease which is enforceable by both parties. Maybe the City can say that it will honor the lease of the required number of spaces for 10 years or more. But this is an intent and not an obligation, and is not enforceable against the City. Who knows, with a change in City administration and a surge in tourist volumes, the City may well decide to tell the developer to go elsewhere five years hence. And that should not be possible if the intent of the Ordinance is applied. And, what is more, as implied in the opinion of its counsel, the City has an obligation to abide by IRS rules. The newly added ten-year obligation of the developer of 418 Meeting Street should run up a red flag to the IRS. In any event, there could be serious problems ahead that would have been avoided if the Zoning Board had given the matter more serious thought.

Your Comments:

Reading your editorial about the BZA does make one wonder what in the world is going on. After the amazing debacle about McLeod where no one in the Planning Department could determine how they came up with the parking spaces which were approved, there are many questions in my mind. Questions which always come back to "what were they thinking?" Good reporting. Thank you.

Posted by: Carol Jacobsen at January 28, 2005 10:29 PM