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Commission plans hearings to close code loopholes

(Dec. 19, 2014) If you haven’t already, this is the last call to take advantage of some ambiguous definitions in the city’s zoning code.

No one? Bueller?

During its Tuesday night meeting, Ocean City’s Planning and Zoning Commission asked city staff to schedule public hearings on potential code changes with the intent of clarifying a number of provisions that the commission feels have been abused by developers.

“The point is that I just wanted to show you what is in the code, so that if we move to public hearing, we’ll be able to come up with some definitive changes,” said city Zoning Administrator R. Blaine Smith.

The commission touched on two major code points that have come under fire in past months. The first pertains to the clause that stipulates that “parking requirements for permitted accessory retail and services uses in a hotel, motor or motor lodge containing 50 or more dwelling units may be reduced” by a certain percentage, depending on the use.

For restaurants that are accessory to hotels, this warrants a 50 percent reduction of required parking spaces, the theory being that restaurants associated with hotels will require fewer amenities, such as parking, since a large portion of their guests will be coming from the hotel.

However, the commission voiced complaint last fall in approving a large development for the former Misty Harbor property on 25th Street west of Coastal Highway. In that scenario, a 140-room hotel is proposed to be built with two 4,600-square-foot restaurants.

All 9,200 square feet are slated to receive a 50 percent parking reduction, despite the fact that the nearly 500 dining seats will far outstrip the number of hotel guests.

“We have to create some sort of relation between the capacity of the dominant use and the capacity of the accessory use,” said Commissioner Lauren Taylor.

Commissioner Peck Miller pointed out that nothing would prevent the developer from later condominiumizing the property and selling off the restaurants as independent operations, despite the substandard parking.

“To me, it comes down to parking credits. It’s very subjective as to what is an auxiliary use and what is a primary use,” Miller said.

The commission can always approve plans with a provision against condominiumizing, board attorney Will Esham said. But he understood the point that there should be some clarification as to how clearly separate projects on the same lot can be lumped together.

“If it was already a land condo and had come in by itself, it would’ve never happened,” Esham said.

“Why can’t we just say that an accessory restaurant can be no more than ‘x’ percent of the occupancy of the hotel?” Taylor suggested. “Set up a table that says if you have ‘x’ rooms, you can have ‘x’ square feet of restaurant with less parking. It doesn’t [prevent condominiumization], but it would make it so that it would create a problem with parking.”

Miller suggested, alternatively, setting a hard cap on the amount of restaurant space that could be counted as accessory.

“You get a 50 percent discount for the first 1,500 or 2,000 square feet, and then it reverts back to normal parking for everything over that,” Miller said.

The commission also briefly discussed the idea of creating a stricter definition of “change of use.”

This would affect the city’s grandfathering provision for non-compliant parking, which allows properties to keep their non-conformities as long as they do not make them more severe, or change the property’s use.

This allows properties to be totally redeveloped, but perpetuate their lack of parking, as long as they remain the same type of use.

The flashpoint project for this issue was the proposed Hyatt Hotel redevelopment at the current Sea Scape Motel.

“We need to define ‘change of use’ more strictly to give us more control over grandfathered parking,” Taylor said. “If you’re knocking down a three-story motel and putting in an eight-story hotel, I feel like that’ s a change of use.”

However, the city’s code only defines “uses,” for parking purposes, in fairly broad categories that lump all hotels and motels together, as well as all bars, restaurants and nightclubs.

Of course, the commission can always exercise it’s highly subjective right to “protect the health, safety, and welfare of the community” in approving site plans.

This could’ve been used on the Hyatt plan if a compromise on parking had not been reached, Esham opined, although it was understandable that the commission was better to not rely upon that power for every action.

“It think that would’ve been a legitimate application of ‘health, safety and welfare,’” Esham said. “Just because it has the nonconformity doesn’t mean it meets the health, safety, and welfare criteria.”

“I think we at least set a precedent last week that if you’re going to put back a hotel, you have to reduce the nonconformity in order to protect the community,” Miller said.

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