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Misty Harbor project approved despite questions about code

(Aug. 23, 2013) Despite 40 years of revision and clarifications, the city’s building and zoning codes – on occasion – still have a capacity to provide loopholes, unanswered questions, and questionable judgment calls that have yet to come up in the city’s long history of real estate development.

Such a rare case was seen this week, as the city Planning and Zoning Commission approved a massive redevelopment project for the former Misty Harbor motel lot, despite an open question of how far one can stretch the definition of an “accessory use.”

“I find it absurd that there isn’t any way to say for sure how many restaurants can be considered accessory to a hotel,” said Commissioner Lauren Taylor. “The number of restaurant guests at some point will outnumber the users of the hotel. Doesn’t that defeat the purpose?”

Under the city’s zoning code, certain types of commercial district – including the one that overlays the Misty Harbor property, located west of Philadelphia Avenue between 25th and 26th Streets – have an accessory use clause that reduces zoning restrictions on certain types of facilities that are incorporated into other facilities.

Throughout the resort, many restaurants have been built as accessory uses to hotels. The major benefit of this is that such restaurants require only half the number of required parking spaces per square footage than they would if they were independent projects. The theory is 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.

The developers of the Misty Harbor property are making full use of that provision, it appears, in a way that the commission had not seen before.

The plans for the development call for two separate properties, according to city Zoning Administrator R. Blaine Smith. “Lot B,” located on the western portion of 25th Street, will consist of a residential condominium complex with 12 units of two or three bedrooms. This property will be entirely separate from “Lot A,” which is to consist of a commercial condominium arrangement with three units located on the lot’s frontage with Coastal Highway.

One unit will be a hotel of slightly more than 100 rooms and suites, depending on the final internal layout. The other two units will be restaurants of roughly 4,600 square feet each.

Although they will share parking and landscaping, and be connected by walkways, the restaurants will be completely detached from the hotel. This is a departure from the typical accessory use setup, in which restaurants are physically inside hotels and usually owned by the hotelier.

“It is a little different, because most of them are the same owner in the same building,” Smith said. “I think technically it can work, but that’s why you review these plans.”

The code, Smith said, does not draw a hard line as to what a developer can declare to be an accessory use.

“If its incidental to the use and to the scale of the project, then it can be considered accessory,” Smith said.

Restaurants are clearly incidental to hotels, especially in a resort, but the scale-appropriateness of two separate restaurants for one hotel was questioned by Taylor and other board members.

“The code clearly doesn’t define where an accessory use ends and a primary use begins,” said commission attorney Kevin Gregory. “I think you, as the commission, are here to enforce and interpret the code, and until there is something in the code the clearly delineates, then it is up to you to draw the line.”

The developers’ attorney, Joe Moore, defended the ability for quasi-independent restaurants to be accessory uses, even if they were different units.

“They’re units, but they’re not land units,” Moore said. “They’re a condo that’s a unified use, regardless of if I own and operate one unit and use and Blaine were to own another.”

“I don’t know where the flinch point is,” advised city Planning and Community Development Director Matt Margotta. “I think that’s what you’re trying to figure out, but it’s not in our code.”

In the absence of any uniform definition, Commissioner Peck Miller said it was the city’s responsibility to make sure the project worked from a practical sense, particularly concerning parking and traffic flow.

“I look at it as protecting the neighborhood where people don’t end up terrorized by the traffic,” Miller said. “In my mind, I would not consider two large restaurants accessory use, but if it’s not prohibited in our code then we’re fine.”

As Miller pointed out, however, the design would need revision to solve a number of issues with traffic flow in and around its parking lots. Of immediate concern was the access point to the front parking lot, located only a few feet west of the intersection on 26th Street. Those coming into the lot would have to wait in the westbound lane of 26th Street to cross the eastbound lane, creating possible backups on Coastal Highway with those waiting at the signal to turn onto 26th Street.

This is a problem elsewhere in the resort with other projects that have put parking lots in front of their buildings, parallel to Coastal Highway, Miller said.

“I don’t see why we would perpetuate that, unless we absolutely had to,” he said. “If you put the curb cut down the road 50 feet, it works, but if you’re only 20 feet it’s a nightmare.”

Architect Robert Heron, of Atlantic Planning, Development, and Design, suggested that the access point in question could be made exit-only. Another means of entering the front lot could be added by creating a drivable throughway between the hotel and restaurants, connecting the front and back parking lots.

Another entrance and exit could be added on the south side of the building, beneath the hotel, which has parking on the ground floor. This would add a third access point on 25th Street, which has a curb cut to the front parking lot as well as another far to the west, near the residential units.

The parking spaces lost to these modifications could be replaced by reducing the size of one restaurant by roughly 500 square feet, a sacrifice Moore said his client was willing to make if it appeased the commission’s concerns.

“If we’re going to allow these restaurants, we have to have a better flow of parking here,” said Commission Chair Pam Buckley. “This is bordering on just too much.”

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