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ABC Store at Shoppes of Midtown Update

Newsletter From: Government Street Collaborative, A Community Action Group

Not represented as legal analysis.

Current Status:

The Planning Commission heard the first round of applicant and public comments on Thursday, Feb. 20th. On a rainy afternoon, 7 representatives of our area residential historic districts showed up, and three spoke to the Commission about the application from Shoppes of Midtown to: 1) UP-ZONE the 5 acre retail strip mall at Catherine and Government streets from Limited B2 to full B2; 2) in order to allow a state-operated and regulated alcohol sales retail storefront (ABC Store).

The result of the Feb. 20th meeting is a carryover to the April 16 Planning Commission and a pending Board of Adjustment (BOA) hearing for a Use Variance to Limited B2 (instead of up-zoning). Neighbors must attend and speak for the Use Variance to seek a favorable BOA decision. Pending March BOA dates are 2 p.m. on these dates: March 2 (not likely) or April 6. Watch for Date, TBA.

Plan to attend the Board of Adjustment hearing and at the least submit your comments to: (identify 1500 Gov't. Street Shoppes of Midtown) or go to the Board of Adjustment website, click on the hearing date, and enter comments:

The Hardship Requiring a Variance as the Resolution

Neighbors made the case that the hardship required to support approval of a Use Variance (per policy) is an imminent threat to our community Quality of Life because: A stable and improving Community requires that existing commercial owners and residents be able to establish a cooperative and productive working relationship so that community standards can be maintained and community improvements can occur going forward. This type of commercial-residential mutual support must be the working model for success in traditional areas of mixed use. If a successful commercial-residential balance cannot be maintained (through fine-tuning zoning to reach compromise, for example) then an internal community failure will result: either the area will become over-commercialized or more intensely commercialized--changing the entire fabric of the area and driving out residential stability and improvement--or the commercial needs of residents in a vibrant and growing area will not be met, which again results in a deterioration of residential life and therefore investment.

This mixed use development model requires exactly the kind of compromise a Use Variance would offer in this case, and to deny that Use Variance would not be in the best interest of the community. In fact, a State ABC store is among the very few B2 sort of businesses that would be congruous, in terms of hours and other impact. Therefore a variance keeps the spirit of the original, appropriate, zoning, but gives the landlord a good and stable tenant while providing a product the neighbors would otherwise have to drive some distance to purchase.

Current Case Status and Feb. 20th Outcome

The resolution on February 20 was that the owner asked for a carry-over to allow them to apply for a Use Variance with the Board of Adjustment. The Commission granted the carry over and the BOA date is TBA, and will probably be April 6th.

Neighbors must realize that we must again attend the Public Hearing at the Board of Adjustment at that time and "make the case" for a Use Variance.

Neighbors must also realize that the owner/applicant, while working in good faith with residents, has left open the door for returning to the Planning Commission to pursue the up-zoning to B2 if the Use Variance fails.

We are left with the hope that if they receive their Use Variance, they will not pursue the application to Upzone to B2 (see further explanation of this in Background below).

Call To Action

The GSC asks that residents in the area plan to attend the Board of Adjustment hearing. BOA meets on the first Monday of the month at 2:00 p.m. -- where the goal will be to support a Use Variance to LB2 for this ABC Store.

The next BOA meeting is Monday, March 2, but this case is not yet posted to the agenda and will likely be posted to the April 6 BOA meeting.

We will follow up, or you can check the BOA meetings at:

Whether you attend or not, at least submit your written comments on the website:

1. Click Agenda to find if the case at 1500 Govt St is listed

2. Click the date, find the case, then click the white down arrow, then click Comment to submit your written comments.

3. Click Report to read the application, Staff summary and Staff recommendation.

What the Future Holds for Shoppes of Midtown

Finally, be aware that we are waiting to hear plans for further developments at this site and will keep the area informed. The owner has commited to meeting with area Board representatives in the future and the GSC will arrange meetings that area Boards are interested in. We must continue cooperative and productive communications.

How We Got Here - Case Background Review

For those who have not followed the case or wish to know its progress to date, this review is provided.

Prior to this meeting, the realtor John Vallas had reached out to neighborhood groups through the Government Street Collaborative Community Action Group, and a meeting was held where the owner representatives responded to neighbor concerns, such as litter, lighting, general maintenance, and vagrancy activities. In response, neighbors were assured of improvements in these areas as well as a promise for private security on site if vagrancy problems persist. The ABC representatives assured neighbors of an attractive storefront with frontage and signage within ARB standards and sensitive to surrounding historic districts, such as low impact signage, professional window signage within the Sign Ordinance for Government Street, low impact security features such as no "riot-style" metal gates on the exterior, and a commitment of management to avoiding vagrancy problems.

Following the meeting, the area historic district and neighborhood association Boards agreed to support a Use Variance to the current LB-2 zoning to operate a state-operated and regulated retail storefront, as resident preference is to retain the existing Limited B2 zoning.

While the owner/applicant's legal representatives made a case to the Planning Commissioners for a need to up-zone to B2, he also reinforced the owner's parallel commitment to maintaining only Limited B2 type commerce with the exception of the ABC store, demonstrated by an extensive restrictions list of ALL of the B2 uses except those allowed in LB2 as a Voluntary Restriction Covenant, thus allowing ONLY a state-operated and regulated retail storefront as an addition. Mr. Pipes, the attorney, characterized this covenant as what neighbors have asked for (which is effectively a Use Variance to LB2.)

So there are 3 pathways potentially running parallel:

1. Up-zoning the entire center to B2 (allowing the ABC Store) without restrictions --which seems to be the potential Staff Recommendation and was the original application

2. Up-zoning to B2 with Voluntary Restrictions Covenant to eliminate all intense B2 possibilities except the ABC store-- which the owner has offered after resident input

3. Retaining existing Limited B2 zoning but seeking a Use Variance to operate only a state operated and regulated retail alcohol store (ABC store)--which the neighbors prefer and which the owner agreed to apply for at the Feb. 20th Planning Commission meeting

It should be noted that the Staff recommended DENIAL of the application with Voluntary Restrictions Covenant. Staff stated a concern over a potential "contract zoning" interpretation, which would not be allowed in Mobile...and Mr. Pipes stated to residents that the owner/applicant is inclined to "see what is the guidance of Staff." This bears scrutiny. Neither the Planning Commission nor Board of Adjustment is required to follow Staff advice; Mr. Pipes undoubtedly knows that. Ultimately, an appeal to either Council (from Planning Commission) or Circuit Court (from BOA) may be necessary in this pursuit. But the ABC representatives have stated to residents that they are not interested in being entangled in a "neighborhood squabble."

The Staff can offer their recommendation to deny the Voluntary Exclusions, but it is on the Applicant to take their case to the Commssion for Commissioners' recommendation and then ultimately to Council or the courts for final resolution as needed. The effect of "following staff advice" here would be to simply leave the B2 up-zoning application in place and remove the exclusions addendum, as '"staff advice." We hope the applicant will not use this strategy, and don't believe they would, for while the Planning Commission has the authority to do this, such action would result in extended challenges.

Neighbors reminded the Commission that the Limited B2 was a compromise promised to area residents when the strip mall opened. Therefore, neighbors request that the LB2 be retained, but are willing to support a Use Variance for the ABC store.

As one speaker said, "We did not want this strip mall in the beginning, but we were given it by the prior owner, and now that we have it, we need to help the new owner stablize it. A vacant and blighted 5 acres in our midst will not improve our area." We add it would be an insurmountable hardship.

The following area historic district and street association Boards signed on to the GSC position:

Leinkauf Historic District - LHDNO

Old Dauphinway - ODWA

Dexter Street Porch Society

Church Street East - CSE

(Oakleigh declined due to a Board member professional conflict but several Oakleigh neighbors attended meetings.)

Other GSC member groups were not contacted, as they do not live near the development. If your neighborhood, district, or association wishes to join future hearings or appeals of this case, please answer this email to that effect.

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