P&Z denies zoning change for used car lot

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By Kristin Beck

Carrollton Planning and Zoning Commission voted 5-1 at a special commission meeting Aug. 13, to deny a proposal from business owner Dean Miller to make a zoning change at his property at 209 Highland Ave., located in the C-1 district to allow used car lots.

Carrollton City Council held a special meeting Aug. 15, to review P&Z’s recommendation. “I have to respect the recommendation from the P&Z,” Councilwoman Ann Deatherage said. “Even though we love to see new businesses come in, these people have been trained in this position and therefore I would like to go ahead and accept their recommendation to council as a motion.”

Mayor Gene McMurry asked for a second, but the other five councilmembers did not say anything. City Attorney Ed James said if council takes no action, the recommendation stands, and the motion died with no second.

Miller’s property is located in the C-1 downtown commercial, historic district, re-development district and waterfront district. He wanted to move his used car lot from 1305 Highland Ave., to that property. However, the permitted uses for C-1 districts include all specialty stores, department stores, places and of amusement and entertainment, but excludes those that would be detrimental to the purpose of the central business district, such as any commercial activity, which would cater primarily to the motoring public. Some examples are service stations, motels, drive-in restaurants, drive-in theaters, automobile dealerships and used car lots.

At the P&Z meeting, Code Enforcement Officer John Welchsaid he and Amy Eversole, representing the City Attorney’s office, reviewed every possible avenue as to how the proposal could be integrated into the zoning, according to the minutes. Upon completion, they agreed that there was no legal way to justify the adoption of such a change within the C-1 district and advised P&Z todeny the proposal.

Welch said Miller was under the impression he could move the car lot back into that area because that is what the old zoning permitted. Since that time, the zoning had been changed and all of the auto-related uses had been taken out. He wanted to amend the zoning to allow used car lots.

“We went into it with a very open mind,” Welch told council Friday.

The first option he and Eversole looked at was changing the permitted uses in the C-1 district to allow for used car lots. The problem with that is if the city allows for a change in permitted uses, that applies to the entire C-1 district. In talking with others and members of the commission, Welch said they wanted to try and restrict this to the immediate area of the proposal. However, when researching if the C-3 district could be applied, they realized they were spot zoning, which occurs when the zoning is changed to meet the needs of one or two people despite the district around it, he said.

“That opens up a can of worms you don’t want to deal with because it undermines the established zoning you have there already,” he said. “So if you allow this one, why not this? Why not this one? And so on and so forth.”

According to KRS 100.123, before any map amendment is granted, the planning commission must find that the map amendment meets three requirements. No. 1, is the proposal in agreement with the Carrollton 2011 Comprehensive Plan? The comprehensive plan is the primary planning document for the city and is examined and updated every five years, according to state statute. When P&Z examined current land uses, one of the findings was that the current C-3 highway commercial district was sufficient in size to handle not only the current auto related uses, but there was also sufficient open space for expansion.

No. 2, is the existing zoning classification given to the property inappropriate and the proposed zoning classification appropriate? According to the findings, the C-1 Central Business District is consistent with the surrounding district as well as the overlay districts: Historic District, Waterfront District and EIP Redevelopment District. The proposed change would in effect change the C-1 to a C-3 district, which is detrimental to all the aforementioned overlays and districts and would change the nature of land use within the area, according to the minutes.

No. 3, have there been major changes of an economical, physical or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area? No such major changes have taken place to justify altering the zoning classification of this property, the findings read.

“Can you ask yourself in both instances that that has occurred?” Welch asked. “Has there been a major economic change that needs to be taken care of by rezoning? Or is the zoning that you have down there now inappropriate and doesn’t provide for what you have down there now and you need to change it in order to do so? Or is that changing a narrow, limited corner of that zone that needs to be changed. Thereby you’re eroding the entire district for the benefit of a small area.”

“What do we have down there right now? We have nothing,” Councilwoman Tammy McBurney said.

“In your opinion, yes. In my opinion, no. I think we’re moving toward something” Welch said. “… There’s nothing wrong with Deanie’s used car lot, that’s for sure. He runs a fine business. Regulations usually aren’t written for those people. They’re written for those who don’t have those standards. That’s neither here nor there. If you change the zoning for one or two properties within a district, then you’re opening a door for the next person to come along and say, ‘You did it for this one.’”

Welch said he has already received a phone call from someone who was denied being able to open a car lot in that area. The man said if this is passed, he is going to open up an auto parts store. Welch said he would expect every other person who wants to do that to take advantage of the opportunity as well.

McBurney noted that the city paid money for Lizzy B Goods to open in that location and she only stayed a few months before moving to another location in the county. She said she cannot see anyone wanting to move in there because it’s not really in the downtown area. Welch asked if you wanted to make that change down there for the benefit of one business? Zoning code is created not for individuals, but for the community as a whole.

Welch pointed out that the car lot moved to its current location in the C-3 district because it is a larger area and accommodates a large parking lot, but the C-1 district cannot handle that land-intensive usage. Welch said the city made one mistake already in tearing down a house on the corner of Fifth and Highland and putting up Kroger’s shopping mart, which should have been placed in the C-3 area. “I think that was a warning shot they saw, and they said, ‘We don’t want this to happen again,’ so they came up with this taking the auto-related uses out because they’ve got that up there where they can have them.”

“From a legal standpoint, there’s no way we can do it to stay within the KRS and stay legal?” Councilman Robb Adams asked.
“The KRS mandates that we apply zoning districts in the manner in which they define. If we do anything to erode that process, which is what spot zoning would do, then they’re against that,” Welch said.

Welch said we can’t use conditional uses because they’re for common uses like libraries and parks within all the districts; there is one way to use them, but officials would have to alter your zoning in the entire city.

“You’re going to need a staff of 10 or 12 people to handle that size of thing,” Welch said. “I don’t know anyone in any city that has done that, but that is a KRS statute.”

“If we can’t do it legally, we can’t do it. And that’s not for me to look at. I know Ed and Amy’s looked at it and I certainly trust their opinion,” Adams said. “With that said, if there were a way we could do it, I would like to see it done, for more than one reason. … I think it would take a quarter of town down there and clean it up and make it much more presentable than what we have now and what I expect to happen in the future. I think if we don’t find a way to get this done, that corner will continue to sit there. I hope it doesn’t; I hope something moves in there tomorrow and it’s just what we all want. Reality, I’m not expecting that to happen, but I certainly hope it will.”

“I think they went through everything, and the only thing I think can be done is a zoning map change,” James said. Eversole added officials could permit all non-permitted uses, but that would allow anything and there would be no zoning at all.

If there is a map amendment, council has to make the above three findings for the entire C-1 district – not just that lot – and send it back to P&Z for another public hearing.

Miller addressed council, saying when the car lot left, there were five or six businesses in that area, but they have since closed. He believes from Fourth Street down to the river should be a different zone.

“You’re out of your walking zone and you’re not going to have any other business go in that you don’t have to buy it,” Miller said.

Councilman Mike Gordon asked Welch about conditional uses in C-1. Welch said a business or a residence is not a conditional use because the city would be using the provision to undermine the established zoning district. “You can’t use the conditional use in that manner,” he said.

Councilman Dwight Louden said when this was initially presented, he did not want any car lots in the C-1 district. But he thinks the area from Second to Third streets off Highland Avenue is not working. “Whether it’s economic or social or flood plain, whatever else it is, it’s not working. I think that area needs to be changed to something that works, whether we want to say it’s flood plain and we need to tear all the buildings down. I don’t know what the answer is, but I can just tell you it’s not working.”

When P&Z addresses the comprehensive plan again in 2016, Louden said he wants the commission to take a good, hard look at that area and see if there is something that can be done.

“Why do you say it’s not working?” P&Z Commissioner and Carrollton Main Street Manager Sam Burgess asked. “You’ve got two viable businesses there. The rest of it’s residential. The only one that’s not working is that one lot that’s in question. … If we’re going to change it to anything, it should be changed to residential, which is the prevailing use.”

“Maybe that’s what you need. That would be up to Planning and Zoning to decide,” Louden said.

“We like to accommodate everybody that comes before this council and all the request that are reasonable and this definitely is a reasonable request,” McMurry said. “But unfortunately we’re bound by ordinances and KRS statutes and under the present situation, we are not able to do what we’d like to do. I’d love to accommodate everybody, but we can’t do it.”

“Planning and zoning, like all of our other boards, are volunteer work,” Adams said. “It’s a lot of time, sometimes a lot of trouble, and I appreciate you all for what you did looking into it more than once, we had you go back and visit it twice, so I certainly appreciate what you all did.”

Dance Center receives EIP funding

Council awarded an Enterprise Incentive Program special grant of $19,050.69 to Turning Pointe Dance Center, located at 425 and 427 Main Street. Owner Cindy Hedges worked out an agreement with property owner Rae Stevens and the city that essentially said that if the property is not used for the dance studio within five years, Hedges and Stevens would share the prorated repayment cost of the grant, except for the money spent on installing the dance floor, City Attorney Ed James said. Hedges agreed to cover that cost should this occur. Council unanimously approved the application.

Advalorem tax rate set

Council approved the second reading to set the advalorem tax rate at the special meeting Aug. 15. The tax rate is 30 cents per $100 of assessed valuation on all real property subject to taxation within the city limits. 

Buy, Sell, Trade Sept. 20

City council approved closing Main Street between Fourth and Fifth streets for an event Sept. 20. Carrollton Main Street Program will host a Buy, Sell, Trade event from 9 a.m.-3 p.m. Main Street Manager Sam Burgess said the event will be a community-wide yard sale, and downtown merchants will be encouraged to hold sidewalk sales.