Second Avenue

City Councilor Dean Brookie expressed an understandable frustration at Tuesday’s City Council meeting. At issue was a requested variance to allow a proposed development to be built higher than its zoning allows. Honestly, admitting that he was torn, Brookie was reflecting the dual concerns over the massive size of the proposed hotel complex and the fear that another design could be far worse.

In the end, though, Brookie and Councilor Sweetie Marbury got it right and voted against the variance. That the other three councilors voted “yes,” which means it was approved, is not offensive in and of itself. Reasonable people can differ, after all. But what is disturbing is the attitude on the part of city officials that they are powerless – or perhaps more properly, unwilling – to in any way confront developers.

Again, the decision before the council was whether to grant the developer a variance. While the neighbors, many of whom have objected to the scale of the proposed development of hotels and restaurants, may have preferred that the entire project be up for debate, that was not the case. And nobody ever said it was.

What was before the council was the requested variance and nothing else. Existing zoning includes a 55-foot height limit, and the developer wants to build to 66 feet.

Nonetheless, city officials seemed to see the issue in terms of what the developer could do by right and what threat was therefore implied. One planner said that even though complying with zoning, the developer could build a 35-foot wall of hotel rooms along the adjoining alley. Brookie feared a different design could be “architectural Whack-A-Mole.” He also said, “We have nothing to say about it if they meet the guidelines, and that’s the problem.”

Worse, City Attorney David Smith said, “The council has no latitude whatsoever.”

Really? Then why the vote?

To Brookie’s point, yes, if developers abide by the zoning, they can do what they want. That is the whole idea. And it is only a problem if those zoning guidelines are poorly thought out, badly drawn or – as is more often the case – not enforced.

To say the council has no latitude, however, is correct only in the narrow sense that the city cannot forbid an action its own rules have already allowed – such as building a hotel on a piece of property zoned commercial. But, for that very reason, that was not at issue. What was before the council was a request for a variance, an exemption, permission to cut a corner and color outside the lines.

And contrary to the way the debate seems to have gone, the City Council is under no obligation, whatsoever, to oblige such a request. Indeed, given that the city cannot forbid the developer to build a hotel on properly zoned property, it would seem that denying a variance would be a welcome and well-deserved way to show the neighbors that while their wishes could not be fully accommodated, their concerns were heard and recognized.

Unless, of course, they were not. And this council does seem vulnerable on that score.

But of as much concern is the underlying supposition here that had the developer not gotten his way, what would follow would be worse. Whether that threat was implicit, explicit, real or imagined is unclear – and irrelevant. That thinking, that process, treats granting a variance either as a reward for submitting a good design or ransom in exchange for not doing something truly horrid. Neither is good governance and neither shows the slightest respect for the neighbors or for the city’s own zoning.

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