Deputy Director of Zoning Tom Talbot was right and Beverly Hills neighbors were wrong, zoning commissioners unanimously ruled after a four-month process full of complications and delays.
The Board of Zoning Appeals (BZA) unanimously overturned neighbors’ appeal of Talbot’s decision to allow developer Mandy Management to build three apartments at 150 Westerleigh Rd. and 1400 Whalley Ave. in Upper Westville’s Beverly Hills section by right, without consulting the public.
Neighbors Andrea Atkinson and Joe Adelizzi had appeared before the BZA every month since March in a rarely used appeal process to get that decision overturned.
They argued that Mandy should not be allowed to build residential apartments by right above existing commercial space in a business district. (Read more about their original argument here.) The conversion of the upper stories from commercial to residential will increase the demand for parking in their neighborhood, they said.
Talbot and neighbors disagreed on how to read a chart in Section 42 of the zoning ordinance, which deals with “new construction” in pre-1963 structures with a first floor zoned for commercial use. The table shows an “X” for “mixed-use residential uses” in business districts, and defines “X” as “not permitted.”
Atkinson argued that since Mandy was technically building a “mixed-use” structure, with an upper-story residential use above a lower-story commercial use, the project was “not permitted” in the business district.
Talbot and City Plan Director Karyn Gilvarg argued the “X” meant “not applicable,” since the regulation was spelled out earlier in the ordinance.
Atkinson and Adelizzi listened Tuesday as BZA Chair Pat King explained her detailed reasoning for denying the appeal. She agreed with Talbot and Gilvarg’s readings of the chart of the “X” as “not applicable.”
Markeshia Ricks File Photo
Mandy Management’s property
Both buildings have been “grandfathered in as non-conforming uses,” since they were built before 1963, King said. Mandy Management is converting the upper stories to residential apartments and therefore is “reducing the nonconformity” of the building, she said. “The nonconforming use is limited to the first floor.”
Therefore, she said, Mandy Management is justified in decreasing the nonconformity of parking, by allowing for fewer spaces, allowed by right for a residential zone.
“People may disagree with that but that’s the ordinance that we have to follow,” King said. “My feeling is that Mr. Talbot was correct when he did what he did.”
Zoning commissioner Charles Decker (pictured above at right), one of five who voted against the appeal Tuesday, said he agreed with King after spending “a lot of time with the ordinance over the past couple of days.” But he criticized his fellow commissioners for delaying the voting process.
“I hope this board is better prepared the next time [an appeal like this] comes up. It’s a procedure we need to make sure we’re on top of,” he said.
From the time the neighbors first appealed in March through June’s BZA meeting, commissioners were unprepared to hold a vote on the matter and continuously delayed it. Atkinson protested in March when commissioners asked Talbot to explain the reasoning behind his own decision to determine how they should vote — instead of reviewing the material independently.
Two new commissioners, Shirl Wilkins and Mildred Melendez, joined the board in May and requested more time to understand the issue and the zoning ordinance. In June, those two commissioners said again that they had not read or received the necessary documents and did not feel prepared to vote.
Zoning Commissioner Ben Trachten recused himself from all but the first discussion on the appeal — because he “previously represented an entity somewhat connected to the current owner,” Mandy Management. Only three other commissioners were present at the start of that April BZA meeting, leaving the board without a quorum to hold a vote.
Commissioners Gaylord Bourne, Wilkins, Melendez, King, and Decker all voted to deny the appeal Tuesday. They took about 10 minutes before discussing and voting to review more than 50 pages of material Atkinson and Adelizzi had submitted to Gilvarg to accompany the appeal.
The BZA had to vote Tuesday, because it marked the last opportunity before the 65-day legally mandated maximum time between closing a public hearing and voting on an issue.
Aliyya Swaby File Photo
Beaver Hills/West Hills/Westville/Beverly Hills Alder Richard Furlow (pictured) said Tuesday that he expected the BZA to uphold Talbot’s decision. He said he plans to submit an ordinance amendment to the Board of Alders requiring any developer hoping to build apartments in a business district to appear at a BZA public hearing first.
“I’m going to meet with a few other alders. We’re going to pull it apart and see what needs to be done,” he said.
“Some day Talbot will bring you down,” Adelizzi called out to BZA commissioners before leaving the room.
Atkinson and Adelizzi also said they expected their appeal to be denied. They don’t have any other recourse at the BZA, they said. But still, Atkinson said, “it’s not over.” She declined to elaborate.
For previous coverage:
Conflicts Of Interest Hold Back Zoning Votes
Countdown Starts To Mandy Mgt. Decision
Rare Zoning Appeal Challenges Zoner’s Decision
Neighbors Fight Mandy’s Apartment Conversion
Once again a zoning provision is found to mean different things, but the outcome is the same: pro-development and against the wishes of the neighborhood.
Am I the only one who sees something wrong in "ambiguous" regulations that are ignored until there is a challenge?
What a way to run a city!