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BZA re-opens Lizard hearing for technical dispute; ruling unlikely to change

(May 24, 2013) An apparent technical snafu sent De Lazy Lizard’s Boardwalk restaurant project back for an additional session before Ocean City’s Board of Zoning Appeals last night, a move that has the project’s opponents on guard even though the previous decision to deny the restaurant’s request is unlikely to be changed.

Last night’s meeting – scheduled after press time for this publication – was intended to correct the action, or rather inaction, taken by the board at its May 16 session.

That meeting involved a hearing for De Lazy Lizard’s request for an exception to 15 required parking spaces for its proposed location at the former Lambros Apartments building on the Boardwalk between Fourth and Fifth Streets.

At the conclusion of that hearing, board Chairman Al Harrison said there had been a motion made to grant the restaurant’s request but that it had died for lack of a second and so the appeal was denied.

However, De Lazy Lizard’s attorney, Hugh Cropper, said this week that because the board had not declared the evidence and testimony given at the hearing to be either for or against his client’s request, the issue was still open.

“That’s just my opinion, that it was neither approved nor denied,” Cropper said. “From my perspective, they have to produce findings of fact that you can present in Circuit Court” should the decision be appealed to the next level.

Although de-facto denial by lack of action may work for the city’s purposes, Cropper said, it would not be sufficient if he were to advance the case up through the Maryland court system. If the city never moved to pass judgment on the evidence given, Cropper would have nothing to challenge if De Lazy Lizard were to appeal in court.

Under the articles of land use in the state’s code, counties and municipalities are required to have certain quasi-judicial review boards whose cases can be appealed to the state’s judicial system.

“We only have a BZA because the state requires it,” Cropper said. “That’ why every county and municipality in the state has a similar setup, with a planning commission, a BZA, etc., that can be funneled into the circuit court system.”

The city must have agreed with Cropper’s challenge, at least in part, since last night’s meeting was to be convened so that the board could make a formal motion of denial.

“The board has decided that, moving forward, when they deny they will deny via motion, out loud,” said BZA attorney Heather Stansbury. “Because this case is somewhat controversial, and it seems like we’re getting busier with more cases now, they want to be sure that everyone is very clear about what happens.”

Because no decision has been made, technically, the BZA could change its stance on the issue, although highly unlikely.

“Theoretically, yes, they could, because there’s legally been no evidence submitted,” Stansbury said.

However, she said, “I don’t see how the board could do that. It wouldn’t be legally advisable. They have already determined what they are going to do, they just didn’t decide it by motion.”

Nevertheless, residents and unit owners in the El Capitan Condominium, who made up the majority of the project’s opponents, planned to appear last night out of an abundance of caution. The El Capitan abuts the Lambros building to the south and its residents have been vocal in their concerns that the proposed restaurant’s parking burden will be too much for their already-congested area.

“My understanding is that if it wasn’t allowed last time, that they would now have to come up with something with conditions [for the projects approval] or make a motion to deny it outright,” said El Capitan property owner Janice Scott.

De Lazy Lizard’s contested request last week centered on the city’s parking code, allowances for which make up the bulk of the cases brought before the BZA. The city requires that all new establishments provide a certain number of parking spaces, based on the type of business and the square footage occupied.

Many older facilities, however, have been granted a historical right by the city for their pre-regulatory lack of parking. The Lambros building has had retail establishments on its ground floor and has apartments on its upper levels, although it has no parking on the site. The rights to such a non-conformity are associated with the property.

But retail establishments require less parking, under city code, than restaurants. The change in use from a T-shirt shop to an eatery would necessitate an additional 15 spaces under the code beyond what the building already had grandfathered in via its previous uses.

Cropper had appealed the code based on the opinion that the restaurant would not need the full complement of parking prescribed, given that it would be on the Boardwalk and the bulk of its patrons would be foot traffic.

Further, the BZA had granted a near-identical waiver of 17 spaces for Hooters, which Cropper viewed as precedent that changes in business use did not equate to changes in parking need, at least on the Boardwalk.

El Capitan residents, however, said that the Hooters approval had been a mistake and had indeed worsened the traffic congestion on their block. They also feared that De Lazy Lizard’s impact would be compounded by the imminent redevelopment of the Hampton House property, to the north of the Lambros building, by Sunsations owner Avi Sibony.

Cropper said this week that, even if resistance from the neighbors continues, De Lazy Lizard would still look to do a project at the site.

“They want to proceed and they’d like to do a business on the Boardwalk at that location, but I’m just not sure what it will look like,” Cropper said. “The property has a parking non-conformity for what’s there now, so you could do something compliant, something that didn’t need the extra spaces.”

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