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Ocean City

Moore finds more than one way to skin a zoning board

(Nov. 21, 2014) City zoning rules seem to have a certain shelf life before somebody figures out a way around them – or before the planning commission starts to accuse someone of using them a bit too well, depending on whose side you favor.

Case in point: earlier this year, a development proposal for the 45th Street Village was denied a parking reduction for mixed–use properties, based on the belief by the Planning and Zoning Commission that “mixed-use” must include a residential component, which the project did not have, as well as retail and restaurant.

This week, the project returned to the commission with the same footprint, but with a couple apartments grafted atop the existing buildings.

It was approved, but not lightly.

“Once again, we’re caught in a position of ‘technically, they’re able to do it,’” said Commissioner Lauren Taylor. “You met the letter of the law, but it doesn’t meet the spirit of the law.”

“I think it’s important to make it bona-fide, on the record, that we’re a legitimate mixed use of this property,” countered attorney Joe Moore. “I think we were a mixed use before we introduced the residential, but we’re not going to go there.”

“The fact is that ‘mixed-use’ is not defined in Ocean City, and you all rejected our definition, and that’s fine,” Moore said. “We’ve now come back with a plan that satisfies [the commission’s definition].”

Moore represents 45th Street investor and Sunsations owner Avi Sibony, who is looking to raze the row of dilapidated retail shops along the property’s southern border – currently being used as Sunsations stores – and construct a brand-new retail complex of 10,282 square feet.

Over the past several years, Sibony has redeveloped the western and northern spans of the shopping village, which now features four separate restaurants as well as a brewery.

The proposed residential space would be retrofitted into the top floor of the southwest building, which houses the Shallow Waters restaurant. Most of this would be a single penthouse unit.

Additional apartment space would also be built above the existing detached Sunsations store on the northeast side of the property, in front of the Bella Vista condominium, which is part of the same parcel.

The final phase of the redevelopment project will also expand the outdoor seating areas at both ends of the restaurant strip, particularly the area behind and to the south of Shallow Waters, where a deck bar will be built.

“One day we would hope that there could be some kind of pedestrian promenade going across the cove to the convention center. That’s an ideal scenario,” said architect Keith Iott.

Paradoxically, but somewhat predictably for those familiar with Ocean City’s zoning code, the inclusion of apartments actually reduces the net parking load to the entire shopping center.

Under the town’s Special Bayside Development regulations, projects of a requisite size are offered a 20 percent reduction in required commercial parking for being “mixed-use.” Moore had previously lobbied the commission to define both retail and restaurant uses in the same project as “mixed-use” status, even though both uses were commercial.

The commission had disagreed, pointing out that the regulations written in 2007 were originally intended to encourage the inclusion of commercial space inside the residential condos that were eating up commercial real estate during the housing boom.

“At the time the legislation went into play, the market was residential and it consumed a lot of commercial-zone properties,” Town Zoning Administrator Blaine Smith said.

But nowhere is the ratio of commercial-to-residential spelled out. Further, the city’s definition of “shopping center” allows restaurant space to be counted as retail space for parking purposes, up to 25 percent of the center’s total volume, after which regular restaurant parking applies.

Again, the commission has maintained that this was meant for malls with some food vendors and a preponderance of retail, and not a design like Sibony’s.

“This is a restaurant complex that happens to have a couple apartments and happens to have a retail store,” Taylor said. “That’s a whole different concept than what this legislation was originally intended for.”

But none of this is spelled out in the code. As presented, the project has 275 parking spaces, and would need 314 under the regular calculation. With the reductions, only 252 are required.

“Denial for non-compliance [with parking] versus denial for specific issues with the site’s layout are different things,” commission attorney Chris Mancini advised. “If you wish to deny, you need to be very specific in your motion.”

Although the general opinion was that the proposal did not meet the intent of the statutes it was taking advantage of, there was recognition that the 45th Street Village redevelopment was unique in size and scope.

“I don’t think it meets the intent of the mixed-use district, even with the residential included,” said Commission Chair Pam Buckley. “However, I am sufficiently satisfied with the fact that it is a unique situation and it could have so much more development on it.”

“I don’t’ want the record to imply that this is totally compliant with the intent of mixed use, because I don’t think it is,” Buckley said. “But this is a unique situation.”

“[Sibony] is trying to develop something he can make money on and move forward with,” said Commissioner Chris Shanahan.

“My hat goes off to him for even wanting to do retail in this market,” said Shanahan, who is currently working on an expansion of his K-Coast store on 78th Street. “In my own project…we feel the retail aspect is going to be secondary [to the restaurant]. That’s just the reality of what is going on in town.”

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