There's been much made of a unanimous decision of the Board of Zoning Appeals to deny a variance sought by Sullivan Hardware for its midtown location on North Pennsylvania Street in the Meridian-Kessler neighborhood. Virtually none of what I've read in local media reports or the musings of Star political reporter Matt Tully's column this week have accurately described why the store's owner, Pat Sullivan, found himself before the BZA with his attorney pleading for relief from the city's zoning laws. In particular, those media reports have unfairly criticized affected neighbors who complained about Sullivan's repeated, serial violation of city zoning laws as "miscreants" and impugned the motives of city officials who simply enforced the laws they took an oath to uphold.
To be fair, Pat Sullivan is unquestionably a valued local business owner on the City's north side. Many of us have come to enjoy listening to his very informative Saturday morning radio talk show "Home & Garden," on WIBC-FM, which he co-hosts with Dick Crum. About 20 years ago, Crum opened a small, neighborhood hardware store at 4838 N. Pennsylvania Street, which at the time was a vacant lot where a gas station had previously been located with the encouragement and support of the neighborhood. The addition of his business to what had become a blighted street corner was a welcomed improvement to the neighborhood to be sure.
The lot on which Sullivan developed his hardware store was zoned C3, a zoning designation for neighborhood commercial districts within fully-developed neighborhoods. The designation is limited to retail, personal and professional businesses that will not burden the neighborhood with unusually high volumes of traffic. The C3 designation specifically prohibits businesses which require outdoor displays, sales and storage of merchandise, or which requires outdoor operations. From the outset, Sullivan was unable to operate his business within the constraints of the C3 zoning restrictions without running afoul of city inspectors.
Sullivan got an initial zoning variance to keep city code inspectors off his back. One of the key variances he obtained was permission to operate the business with parking for 19 spaces, about half of what the zoning ordinance required of a business this size. Later, his hardware store morphed into a home and garden business that had not been anticipated. An enclosed gardening center became a greenhouse, neither of which was permitted by his original variance. Sullivan successfully obtained a second zoning variance for his greenhouse in 2009, and he also apparently agreed to build a sidewalk along one side of his property.
The sidewalk he agreed to build as part of his 2009 variance never got built. The 19 spaces he agreed to provide shrank by several more spaces to about 14 to 15, including required parking for disabled persons, as he expanded outdoor storage and sales for seasonal merchandise, including mulch, flowers, pumpkins, rock salt and Christmas trees, along with other outdoor displays, all in violation of his C3 zoning, as amended by his previously-approved variances. To make a long story short, city code inspectors began citing Sullivan for multiple code violations, none of which stopped him from continuing operations in violation of city zoning laws. This resulted in the City instituting a lawsuit against him, seeking injunctive relief and fines, at the urging of the closest neighbors most directly impacted by his business operations.
Faced with a certain loss in the civil proceedings, Sullivan hired an attorney and turned to the zoning variance process once again to escape the restrictions of his C3 zoning. This time, Sullivan wanted a parking variance to reduce the number of required parking spaces from the 19 previously authorized to 14. He also sought approval for seasonal outdoor display and storage of goods, approval of a trash enclosure he built in violation of zoning requirements, and an allowance for the display of products within the clear site triangle area adjacent to the intersection.
By coincidence or not, Sullivan hired a well-known disabled attorney, Greg Fehribach, who doesn't generally practice zoning law but has a history of filing nuisance complaints against businesses he says fail to make federally-mandated accommodations for persons with disabilities, to represent him before the BZA. Apparently the fact Sullivan's business didn't accommodate parking for persons with disabilities like himself was of little concern to Fehribach when there was a fee for services. The gist of their argument for the latest variance request is that when Sullivan opened the hardware store, he didn't know a big box Lowe's would be opened up nearby, posing stiff competition to his neighborhood hardware stores. An expansion into gardening-related sales Sullivan said was necessary to compete with the big box stores. Of course, the big box stores aren't located within neighborhoods and are built on large lots with C4 zoning that permits outdoor storage and sales.
The BZA's staff sided with neighborhood remonstrators described as miscreants by news reports in opposing Sullivan's latest variance request for the most part. The staff pointed out that two other gardening stores in the neighborhood, Habig's Garden Center and Damman's, were similarly competing against big box stores within the confines of their C3 designation. The Meridian-Kessler Neighborhood Association, of which Sullivan's Hardware is a platinum member, supported his request for a variance, notwithstanding the opposition of the neighbors most affected by his business' operations or the conflict their position had with their own written development standards for the neighborhood. The four members of the BZA panel had little choice but to deny Sullivan's petition based upon the evidence placed in the record by staff and remonstrators.
Apparently all of the negative media coverage of the BZA decision stirred people to contact the Mayor's Office and City-County Council members seeking relief for Sullivan, who claims he will have to shut down his business if the variance is not granted, a claim I find dubious. I wonder where all of these people were when the Metropolitan Development Commission approved without debate a $300,000 give-away to Carson Pirie Scott courtesy of the taxpayers in exchange for a commitment from that national retailer to remain in Circle Centre Mall a couple of more years while the City finds a long-term financial solution to their claims they can't afford to operate a store in the booming downtown area where more than a $2 billion dollars in public subsidies have been doled out for new development over the past couple of decades? I don't see the City handing out subsidies to other locally-owned retailers to operate their businesses. I guess when it affects Simon Property Group's bottom line, it also affects the City's bottom line, but I digress.
WRTV is reporting this evening that Sullivan has been provided assurances from Mayor Ballard's office that the City will find a way of undoing the BZA's decision, which by law Sullivan would have to appeal to the superior or circuit court to overturn. "There's always ways around stuff and that's what the city has committed to find a solution," Sullivan told WRTV. "You know everything doesn't fit tightly into a nice zoning code. You gotta hand it to the neighbors. They want this store to stay here, and they lit up the phone lines. It gave the city the strength to find a solution," Sullivan said. I don't doubt there are changes that could and should be made in the local zoning ordinances. What I detest is how people with clout like Sullivan always seem to find a way of skirting the rules, while you can watch ordinary citizens time after time seek variances from restrictive and sometimes unfair zoning laws and always have the door slammed in their faces without recourse.
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