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City attorney to study zoning board decision

December 10, 2004|by GREGORY T. SIMMONS

gregs@herald-mail.com

HAGERSTOWN - The City Council has authorized the City Attorney's Office to look into a Board of Zoning Appeals decision that did not adhere to city rules, Mayor William M. Breichner said Thursday.

The BZA's October decision could open the city to litigation if not corrected, but the city is not sure what measures are available to fix the problem, Breichner said.

"I'm not sure (if) we can sue ourselves," Breichner said. "I don't think we've faced this problem before, so we're treading new ground."

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The BZA members are appointed by the mayor, and they interpret only a limited amount of the city's zoning ordinances but can overturn some decisions by city staff.

The City Attorney's Office will probe a BZA decision on whether to allow a developer to build two duplex homes in the 200 block of Frederick Street. The council authorized the probe in closed session Tuesday.

Richard Toms, a co-owner of Peachtree Suites LLC, had applied through the city's planning office for a variance to allow him to build the duplex homes at 295 and 297 Frederick St. When the city denied the application, he appealed the decision to the BZA.

Toms argued that although the land is zoned with a C2 designation - a moderate commercial use - it is surrounded by duplex homes like the ones he planned to build. Additionally, the vacant lots once held duplex homes.

In its Oct. 20 hearing, with no public opposition, the BZA agreed with Toms, overturned the city's decision and approved Toms' request.

The conventional wisdom is that if a building type isn't allowed in a certain zoning district - even if it would make sense to do so - the land owner must apply to rezone the land. The City Council makes final decisions on rezoning cases.

The BZA bypassed that process, and if someone appealed the BZA's decision to Washington County Circuit Court - the next level of appeal - "they would have standing" to overturn the BZA's decision, Breichner said. That is the problem the City Attorney's Office will explore.

Planning Commission Chairman Douglas Wright on Thursday said the BZA has several new members, and he believes they just haven't been trained well enough in the intricacies of the city's zoning codes.

"They've made a couple decisions that have, we think, have gone really flat out against the (zoning) ordinance," Wright said. The Frederick Street case "is the most severe."

Wright didn't fault the BZA members in their decision.

"They were using common sense," but they have to stay within the zoning ordinance, Wright said

BZA member Richard Trump said more educational opportunities are welcome.

"We're just citizens out there volunteering. ... I'm just trying to help out, and if it was a mistake on anybody's part, we'll work through (it)."

Toms, who lives north of Hagerstown, said he's concerned about what will happen next. The two lots are still empty, but he said he was hoping to move forward soon on the building process.

"I'm sure something will be worked out. I just thought I was going through the proper steps," Toms said. "I didn't realize I was going to get into all this."

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