Thursday, January 5, 2012

Green Castle Wins

Green Castle won their land use appeal against BDS over the zoning decision that shut down the cart pod.  Some notable points:

-  The Hearing Officer rejected the 1987 neighborhood action plan as mostly irrelevant:
[what should be considered is] the character of the neighborhood as it exists today, not how it may be envisioned in the future by an adopted area plan. For this reason, the Hearings Officer disagrees that the Kerns Neighborhood Action Plan can be a criterion for approval in analyzing whether the proposed food court fits into the residential character of the surrounding neighborhood. Such area plans, however, can constitute some evidence of the existing character of the neighborhood and provide an indication of whether an adjacent residential area will remain residentially zoned over time. Here~ the 1987 Kerns Neighborhood Action Plan, which is admittedly outdated, indicates that the residentially zoned lands near the subject property are likely to remain residentially zoned at least into the near future. Other than that, the area plan is not very helpful in this analysis.
Do you know what your neighborhood action plan is?  Do you know who wrote it?  Are you comfortable with someone making any decision of consequence based on it?  Score one for common sense!

-  The officer then goes back to Websters Dictionary(!) to get a working definition of "residential character".  Based on that,
it is reasonable to read the concept of"residential character" as used in 33.25S.0S0.B.2 to mean the distinctive quality of the place where people dwell and live. For this reason, the Hearings Officer concludes that for the purposes of complying with 33.25S.0S0.B.2, the "residential character of the * * * R zoned area" cannot be determined solely by looking to the zoned use of the residentially designated buildings in the vicinity of the nonconforming situation. As described more fully below, it is reasonable to examine the residential area's  proximity to other uses such as existing commercial uses to determine the "character" of the residential area, and to determine whether the appearance of the proposed change in the nonconforming situation conflicts with that character. 
Score TWO for common sense!  You can't understand the character of a neighborhood without actually looking at... the neighborhood.  The whole neighborhood, warts and arterial traffic and other zoning uses and all.

- Finally, the officer acknowledges that neighborhood opinion should matter:
...the analysis is not as dependent on definitional limits as BDS Staff seems to conclude, but is determined primarily by substantial evidence. Here, the preponderance of substantial evidence strongly supports the Appellant. At the hearing, several parties submitted uncontroverted testimony that the "appearance" of the commercial parking lot before the food carts arrived was very undesirable. Those parties stated that illegal camping, litter, and illegal dumping were occurring and that the parking lot had an unkempt look. In contrast, the parties described the food court, while it was in operation, as clean, well kept and well lit. Their testimony indicated that illegal dumping and camping had ceased, and that the food court generally had a pleasant appearance.  The Hearings Officer views this testimony as substantial evidence that the appearance of the food court is considered a benefit or amenity to the surrounding residential area.
And he hits the trifecta!

The appeal finding pretty much refutes everything that made the initial BDS decision so bad.  Voices of today should count while those from 1987 should not.  Boundary lines that exist only on zoning maps shouldn't be taken to arbitrarily limit what constitutes a neighborhood.  Cheers to the Hearings Office and Green Castle!

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