Zoning board says no, parking is not a business

On Tuesday night, the Athens Board of Zoning Appeals fired a shot across the bow of the city's code office and Planning Commission, over a legal question that could affect the shape of future development in the city's business zones.

In a unanimous vote, the zoning board put itself on record as opposing a recent interpretation of the zoning code by the Athens Planning Commission, which cleared the way for a controversial Stimson Avenue apartment project to go forward.

The five zoning board members agreed that they will refuse to hear any future cases that involve the section of code relating to the city's uptown business and general business zones, until such time as City Council clarifies whether ground-floor parking spaces for upper-story apartment dwellers qualify as a "commercial" use in a business zone.

This was the pivotal zoning issue in a recent ruling by the Planning Commission, which gave developer Ric Wasserman approval to move ahead with his plans to tear down the BellaVino beer-and-wine store on West Stimson Avenue and replace it with an 18-bed apartment building.

The board's motion also declared that the zoning board disagrees with the Planning Commission's 3-2 vote last month that gave Wasserman the green light to pursue his plans.

"We need help in our interpretation (of city code)," explained zoning board member Greg Lavelle, who introduced the motion.

Board member Betty Hollow spoke in support of Lavelle's motion, arguing that when the Planning Commission gave the go-ahead for developer Wasserman to build his apartment complex, it badly misinterpreted city code.

"Our interpretation is just what the code says," Hollow insisted – and different from what the Planning Commission sees in the code.

Stimson Avenue is in a B-3 (general business) zone, which has much the same regulations as a B-2 (business district) zone. Both allow residential uses such as apartments in buildings on the second floor and above, but require the ground floor to be a commercial use.

Wasserman's plans include a parking lot on the ground floor for his apartment tenants. He argues – and city Code Director John Paszke apparently agrees with him – that these parking spaces, which are paid for by tenants, qualify as a "commercial" or "business" use permissible in a B-3 zone.

At a meeting of the Planning Commission in January, city Prosecutor Lisa Eliason told the commission that in the legal opinion of city Law Director Patrick Lang, tenant parking does not qualify as a business use in a business zone.

Disregarding this opinion, the commission's three citizen members voted to give Wasserman permission to proceed with his apartment project as designed. The two city officials on the commission – Mayor Paul Wiehl and Service/Safety Director Paula Horan Moseley – voted against approval.

The zoning board indicated Tuesday night that it is siding with Wiehl and Moseley, and believes tenant parking – which is required by city law for apartments – is not a legitimate commercial use for the first floor in a business zone.

"I think the intent of a business zone is to promote businesses on the ground level," zoning board member Joan Kraynanski suggested after the meeting. To allow a parking lot associated with an apartment building to fill that role, she said, "really refutes the whole idea of a commercial district."

WASSERMAN'S APARTMENT PROJECT has found its most vehement opponent in Ron Luce, director of the Athens County Historical Society and Museum. Luce has been candid about the fact that his main opposition to the plan stems from the fact that it requires destruction of the BellaVino building, which began its existence more than a century ago as a stable for pack animals used by a nearby brickworks.

Because there's no legal protection for the building based on its historical significance, however, Luce has based his campaign against the apartment project on its alleged violation of city code – specifically, the parking on the ground floor.

Luce tried to get the Board of Zoning Appeals to review the Planning Commission's approval of Wasserman's project, but was told by Law Director Lang that he couldn't get that issue on the board's agenda, and that if he wanted to fight the ruling, would have to go to court.

Luce attended Tuesday's zoning board meeting, and said afterwards that he was pleasantly surprised to see the board essentially come out and endorse his view of what the code says.

"I'm very pleased," he admitted.

He added, however, that the board's vote probably won't make much difference to the fate of the BellaVino building.

"Unfortunately, I don't know that it will do anything to save what I call the 'mule barn,' the BellaVino building," he said.

When Lavelle of the zoning board introduced his motion, board member Lisa Carson questioned whether it was necessary – though she ended up joining the other members in voting to approve it.

Carson suggested that the zoning board has the authority to interpret city code as it sees fit, and may not need guidance from City Council on the first-floor parking question. Lavelle responded that there is clearly some ambiguity in the way the code is now being interpreted by different city entities.

"We can (do our own interpretation)," he acknowledged. However, he added, "if you've read the newspapers," it should be obvious that there is a legal issue that needs to be resolved.

Code Director Paszke, who has stated that he thinks first-floor parking is clearly a permitted use in a B-3 zone, seemed visibly upset by the board's vote.  Asked for comment after the meeting, he replied, "I don't want to talk about it."