The Price of Liberty is Eternal Vigilance
BZA Meeting - March 2
Grants exception to Adult Video Store Denies our appeal on 418 Meeting Street varianceWarwick Jones, Editor
Success at lastThe Board was entertained last night as it pondered a decision on a variance to allow re-siting of an adult video store. Mr. Tommy Goldstein, the attorney for the owner of the much discussed and criticized Videos and Beyond Store in West Ashley gave a spirited, amusing and ultimately successful performance, Mind, he has had a lot of practice. He has been involved in litigation over the store for some years now. He has even made representations before the State Supreme Court. Until last night, there had not been much progress. But the frustration of the years has clearly sharpened his sense of humor.
Mr. Goldstein virtually pleaded with the Board to grant the variance. He commented on the years of searching and the frustration of meeting the ordinance requirements. It is not that "adult use" stores are banned from the city. They can't be sited within 1000 feet of any school, park, church or residential area or any other adult use. This was pretty confining. He noted that his client was prepared to pay a special bonus to two realtors if they could find a site. One nearly succeeded, it seemed. There were three owners, two of which agreed to a sale but the third, a relative no less, refused to sell.
After the years of searching, a site was located at 2019 Pittsburg Avenue, abutting the boundary of North Charleston. It meets all the requirements of the ordinance except that it is right next to other 'adult use" facilities. These are not in the City of Charleston but still their location is sufficient to require a variance from the BZA.
One member of the board suggested that the 1000 ft distance from another "adult use" facility was illogical. It was pointed out that in Boston, they are all clustered into what is known as the "combat zone". But as the Chairman pointed out, the BZA does not make the rules.
The City recommended against the requirements and an attorney for the City also stated that "20 TMS numbers" had been identified as possible sites (we don't know why he used the Tax map identifications rather than sites) But despite the recommendation from the City, the BZA supported the request with a 4-2 vote. It conceded that there indeed was hardship in meeting the ordinance stipulations
With the approval of the variance, the law suits that have been initiated by the owner of Videos and beyond will be withdrawn. However, whether this will end all litigation remains to be seem. We sat next to the owner of the "adult use" store that will abut the property on which the new video store will be located. He was not happy with the proposal and vowed to use legal means to stop It. Was he serious? We don't know. But he commented that he had "police on the block" and was not happy about the some hundreds of people that the new store might draw.
Considering the comments of Mr. Goldstein last night, it is likely the new store will be set up as soon as possible. The old store is closed after losing its business license about a month ago. The new store will offer the same novelty products, videos and services as the store in West Ashley.
Board unanimously rejects our appeal on 418 Meeting Street Development
Hearings on the proposed development at 418 Meeting Street have been covered in recent notes published on this site. To recapitulate, the developer 418 Meeting Street LLC, wishes to construct a 36,000 sq ft commercial building. It sought a number of variances and exceptions, the most important of which related to parking. The ordinance required that development provide 47 spaces. However only 17 could be placed on-site. Council member Henry Fishburne is the principal of the development company.
We joined the Preservation Society and Charleston Historic Foundation in opposing the variances and exceptions at the first hearing of the BZA. We thought the building was too big for the site and the parking variances excessive. A decision was deferred because of some issues relating to the parking lease with the City. However, the BZA at its second hearing granted the developer all of its requests. The conduct at the second hearing and the cavalier attitude of the City prompted us to appeal the decision.
The BZA virtually dismissed our request. There was virtually no discussion. A motion was made to deny the request and the vote for denial was unanimous. We think our argument has merit. The viewer can decide as the text of our submission follows.
I (Warwick Jones) request that the Zoning Board rescind the variance granted to the developer of 418 Meeting Street from the requirements for off-site parking.
The parking spaces to be leased by the City to 418 Meeting Street Associates in the City's Visitors Center Parking Garage do not satisfy three specific requirements of the Zoning Ordinance. At its hearing, the Board did not address one of these requirements at all. In my view, it did not properly consider the other two.
First, Section -315 of the Zoning Ordinance states that "The purpose of this section is to establish minimum requirements for off-site parking."
Under Section -317, the "minimum requirement" for off-site parking for 418 Meeting is 30 spaces.
Section -317 also orders that parking spaces required for one use "shall not be used to satisfy the parking requirement for another use". The spaces leased to the developer violate that requirement.
The first paragraph of the lease expressly states that the leased spaces are "unreserved parking spaces." That means that parking spaces for 418 Meeting - like all other spaces in the garage - are available for public use on a first-come first-serve basis.
It is not possible to set aside these spaces for the exclusive use of 418 Meeting.
Because it would run afoul of IRS regulations that apply to garages financed with tax-exempt bonds. As a result, the off-site spaces required for 418 Meeting are in fact available to the public. That is clearly a double use of the required spaces.
The spaces being leased to 418 Meeting therefore violate the requirement of Section -317 that off-site parking spaces be used only for their required purpose.
And consider this. The garage at the Visitors Center was built primarily to serve tourists. Their numbers are growing. The spaces in the garage will be used on first-come first-served basis. There is likelihood that there will be occasion when the garage is very crowded, or indeed full. There could be, perhaps, no spaces for the use of 418 Meeting.
The result will be parking that "spills over" onto to adjoining streets - precisely what the requirements of the Zoning Ordinance were intended to prevent.
The variance given to the developer will set a bad precedent If not rescinded. If you allow unreserved parking spaces for 418 Meeting, the City will be free to make similar arrangements with other developers of King and Meeting Street properties. The City will be able to write as many contracts as it wants, regardless of parking space capacity. It need not fear that the Zoning Board will enforce the Ordinance.
Second, Section -319 requires that off-site parking be "within 400 feet" of the development. But these spaces would be 580 feet away.
I recognize that the Board has granted exceptions to this 400 feet requirement. But the excessive distance from the development should not be considered independently. It should be considered together with the other fact - these spaces have not been allocated for the exclusive use of 418 Meeting.
So, these parking spaces are unreserved AND nearly 50% farther away than permitted by Section -319. The excessive distance by itself should be sufficient to rescind the grant of the variance. So should the non-allocation of spaces. Taken together, they are more than compelling.
Third, Section -319 requires "a satisfactory long-term lease of at least ten (10) years" for off-site parking.
In the original lease, which interestingly was not submitted to the Board at the first hearing, paragraph 5 states the following: "This Agreement shall terminate six (6) months from Commencement [and] shall automatically renew for successive additional six (6) month periods, unless the City gives a 30-day written notice to 418 Meeting of its election to terminate this Agreement prior to the expiration date."
Paragraph 5 is still in the lease!
The City subsequently added paragraph 6. This obligated the developer not to terminate the lease for ten years. But it left unchanged the obligation of the City. The City can still terminate the lease with 30 days notice.
So why is the City playing around with words?
Because a binding ten-year lease would violate IRS Regulations. The regulations prohibit leases longer than six-months.
The City has tried to do the impossible. - --To create a lease that could be simultaneously both a six-month lease for the City, and a satisfactory ten-year lease for 418 Meeting
The City's legal opinion was not straightforward about these conflicting paragraphs. Nowhere In the opinion is there a simple and direct statement that the lease is a ten-year lease. Instead, the opinion evasively said that the added paragraph "has the effect of 418 Meeting being obligated for a ten (10) year lease with the City."
The legal opinion didnot say that the lease was a ten-year lease. Because it couldn't! The tax regulations prevent the City from ever entering a ten-year lease for the garage.
The reality is -- regardless of any obligation the developer supposedly has -- the lease still allows the City to cancel for any reason, at any time! The City may have the best intentions not to terminate the lease during the next ten years. But intentions are not enforceable! Regardless of any obligation the developer is supposed to have, the City has no legal obligation to adhere to the lease for ten years.
As paragraph 5 still says, the lease is a six-month lease with a provision for automatic renewal unless the City decides to end it.
The plain fact is that the lease is not, and never can be a ten-year lease, let alone a satisfactory lease for purposes of the ordinance.
Finally, let me point out the precedent you are setting. If you allow this variance to stand, you are saying that all that matters is that the developer is committed to a long-term lease. The provider's commitment is irrelevant.
So why shouldn't a developer anywhere else in the city approach a private owner of a parking lot and seek a similar arrangement - an arrangement whereby for the developer commits to a 10 years or more parking lease, at market rates, but the provider has the option to pull out with a month's notice?
Just about every parking provider would sign a deal like this. Sounds crazy doesn't it. But is there any difference between that hypothetical lease and the one the City and 418 Meeting Street have signed?
Leases like this one between the City and 418 Meeting would make a mockery of the parking ordinance.
For all the reasons I've given, I respectfully ask the Board to rescind the parking exception granted to 418 Meeting Street.
1. There is not "a satisfactory long-term lease of at least ten years" as required by Section 54-319 of the Zoning Ordinance.
2. The off-site parking spaces are not set aside for the exclusive use of the development as required by Section 54-317.
3. the spaces are at an excessive distance --approximately 50% farther from the location of 418 Meeting than the distance allowed by Section 54-319
Let me make a further comment.
The City led the Board to believe in the first hearing that it had signed a 10 year lease with 418 Meeting Street.
This lease was not available in the public documents. When you learned of the possibility that the lease was not long-term, you deferred the meeting. The nature of the parking lease was clearly recognized as important, and indeed, the City modified the lease agreement.
You accepted this amended document at the time of the next meeting. You decided on the variances and exceptions before any public scrutiny was possible. You effectively denied the public an opportunity to comment on the new lease before making your decision.
Was this fair?
After all, the small print on your notices says that all documents are available for public viewing in normal business hours. Clearly all documents were not available during normal business hours, Or at any time!
The issue is not only whether it was fair, but was it right!!!