(Dec. 5, 2014) You can lead a horse to the lot, but you can’t make him park, unless he wants to.
The city’s planning commission has approved the redevelopment of the Sea Scape Motel properties on 16th Street into a massive Hyatt Place hotel — on the condition that the property’s owners dedicate additional parking to the project in order to alleviate a severe — but legally permissible — lack of spaces.
During Tuesday’s hearing, the Ocean City Planning and Zoning Commission grappled with, in the words of Commissioner Palmer Gillis, the “reality versus the legality” of grandfathered parking nonconformities.
“The legality is that you meet the code. The reality is that it stresses the neighborhood and doesn’t serve the property,” Gillis told the applicants.
“Although it may discomfort some of you, [the owners] have a legal right to that nonconformity,” argued Hugh Cropper, the project’s attorney.
“With all due respect, I think it’s beyond your authority or your job to re-write the code. As it stands, you’re not recognizing a legally existing nonconformity,” Cropper said.
The proposed Hyatt would be a complex of 170 hotel rooms and four employee apartments, plus restaurant, retail, conference and wedding space. The project entails two separate buildings on either side of Baltimore Avenue south of 16th Street.
As presented, however, only 113 parking spaces would be provided on-site. But given the massive nonconformity rights granted to the Sea Scape property, this is actually more than the site needs, at least legally.
“The reality is that parking in that area is already a nightmare, and you’re talking about having 100 less spaces than what are going to be needed for practical purposes,” noted Commissioner Lauren Taylor.
As is almost always the case, tension between the commission and developers stems from the city’s Byzantine zoning code.
As City Zoning Administrator R. Blaine Smith pointed out, Ocean City’s code is almost entirely unique compared to any other jurisdiction in the nation when it comes to perpetuating non-conforming building features.
In Ocean City, a property that does not meet the current zoning codes, but was built before those codes went into effect, is allowed to continue to exist indefinitely. Further, if the property is razed, the owners have a two-year window to rebuild and retain rights to the same nonconformity.
This means that the Hyatt can be built to lack the same number of parking spaces as the Sea Scape historically has. Being originally built with only 32 spaces for a motel of nearly 100 rooms, the Sea Scape confers considerable nonconformity right.
“We’re at a point in Ocean City where nonconformity is part of the contract in real estate,” Cropper told the board. “Those rights are part of what you pay for.”
In fact, Cropper noted, the project has not taken advantage of all of its parking nonconformity, and could have fewer spaces if it wanted.
“Our required parking is what it is,” Cropper said. “We’re not asking for a parking waiver, and we don’t need one.”
But the city’s charter also mandates that the commission “protect the health, welfare, and safety of the surrounding community” when reviewing projects, Commissioner Peck Miller said..
“In my opinion of the health, welfare, and safety of the surrounding neighborhood, this project falls short,” Miller said. “This doesn’t meet that test at all.”
If the development was operating in a vacuum, Miller said, the commission’s subjective opinion of it wouldn’t be legally applicable. But that it not the case, he maintained.
“If this property was its own little island insulated from everything else, we would just let you build it and suffer the repercussions or reap the benefits [of the nonconformities],” Miller said.
“But this is a detriment to the long-term redevelopment of the entire area.”
Further, the proposed Hyatt will also use the city’s height-by-right provision, which allows additional stories to buildings on larger lots in exchange for additional setback and landscaping.
Additionally, 12 Transferable Development Rights (TDRs) will be taken from the density of the west property in order to put more on the oceanfront.
This will bring the oceanfront building up to eight stories, rather than the usual maximum of five.
“We have a property that’s already deficient, now you’re giving them height-by-right and TDR,” Miller said. “It seems like you would make them fix that deficiency to take advantage of those.”
But Cropper chafed at the notion that his client was taking advantage of, or being given, any kind of privilege. The project was simply being built to the black-and-white code parameters.
“This is determination is made by the mayor and City Council. They’ve written the code, and Blaine has calculated the nonconformity … the planning commission can’t go back and change that,” Cropper said.
At eight stories, the oceanfront building will contain 105 rooms, four employee housing units, and 61 parking spaces. The five-story west building will have 65 rooms and 52 spaces.
Both buildings will have a restaurant and conference area. The oceanfront building will also have Boardwalk retail storefronts and wedding facilities with separate bridal dressing rooms.
“I realize the code says you can do this, but it also doesn’t say you have to have eight stories, or that you can’t provide more parking,” Taylor said.
Several members of the family-owned Sea Scape, however, also own the parking lot on the southwest corner of Baltimore Avenue and 15th Street, which is used for overflow at the current motel.
If this lot was formally dedicated to the project, Miller said, he would be much more favorable view. Otherwise, the commission agreed, the project would be too detrimental to the neighborhood to meet the test for approval.
“We will be willing to deed-restrict that property as parking for the hotel if we are given approval tonight,” Cropper relented.
With Commissioner Pam Buckley absent, the commission voted unanimously to approve the plans on the provision that the deed to the 15th Street land be formally restricted to providing a minimum of 40 usable spaces for the Hyatt facility.
Combined with the 113 on-site, this will put the building relatively close to full parking conformity.
The deed to the Hyatt itself will also be restricted to note that the apartments are for employee use only and not to be rented to the general public, thereby increasing the parking load. The bridal rooms are also to be restricted from ever being rented to the general public.
The new Hyatt will remain in family hands. Managing Partner Tom Bennett is listed as the project applicant on city documents, but the hotel will be owned by a group of related persons that includes members of the Rinaldi family, according to Cropper.
Mario Rinaldi finished construction of the Stowaway Grand in 2001.
According to Keith Fisher, the project’s architect, demolition of the Sea Scape is planned for mid-January, with the oceanfront building to be open for the 2016 summer season.
The Sea Scape currently has several tenant businesses that will be closing their doors once the building is razed. Most notable is Pepper’s Tavern, an iconic Boardwalk bar and music venue.
Pepper’s owner Dennis King passed away earlier this year.