Rare Appeal Challenges Zoner’s Decision

Neighbors made use of a little-known appeals process to try to overturn a zoning staffer’s decision — only to have the staffer write a subsequent opinion to uphold his own decision.

The episode brought to light a still-to-be-resolved question about how the city’s zoning board reviews public appeals.

It also centers on how to interpret an ​“X” in a zoning chart.

The appeal came from two neighbors in Upper Westville’s Beverly Hills section, Andrea Atkinson and Joe Adelizzi (pictured at top of the story), who for months have sought to stop Mandy Management from turning portions of two adjacent commercial buildings — at 150 Westerleigh Rd. and 1400 Whalley Ave. — into new apartments.

The neighbors appealed a decision by the city’s deputy zoning director, Tom Talbot, to sign off on the plan, without a public hearing. Talbot handled the appeal of his decision, and recommended denying it.

The neighbors came this week to the monthly meeting of the Board of Zoning Appeals to ask its members to consider the appeal at a public hearing.

Board members at the meeting, held Tuesday night at 200 Orange St., were caught off guard. They said they were not informed enough on the case details to judge the appeal, so they asked the neighbors to come back next month to continue the public hearing.

Wrong The First Time

Mandy Management, operating as Netz LLC, asked Talbot for permission to build five apartments, with no dedicated parking for tenants, in a space that had previously housed commercial offices. Talbot approved the request, with no input from the public or the Board of Zoning Appeals.

After Atkinson and other neighbors protested, Talbot realized he had made a mistake interpreting the regulation on parking. (Read here about his public owning-up to neighbors.) It turned out Mandy either would have to apply for a variance to build five apartments without parking, or could decrease the number of apartments to three. The company decided to do the latter, meaning it then needed no parking variance.

Now neighbors and zoning staff are battling over whether the city zoning ordinance permits Mandy to build housing in a general business district. Atkinson argued that Mandy needs to apply for a special exception and variance to put a mixed-use development in a general business district. Talbot said her interpretation of the ordinance is incorrect, that the development of three apartments in those two buildings is permitted without further zoning staff or board permission.

Atkinson filed a ​“review of administrative order” form with the zoning board to appeal Talbot’s decision. She approached the Board of Zoning Appeals Tuesday night meeting to ask commissioners to arbitrate the disagreement. The board members responded that had not been briefed on the situation before the meeting. Board Chair Patricia King and member Gaylord Bourne said they were unsure of the process, because they had never before heard anyone appeal a zoning decision.

They instead read through a staff report advising them to ​“sustain opinion of the Deputy Director for Zoning” — a report prepared by Deputy Director for Zoning Talbot himself.

City Plan Director Karyn Gilvarg told the Independent she had been ​“willing” to write the report, but ​“Tom [Talbot] felt he was the one who had done the interpretation” originally and he wanted to explain it.

“If I had written the report,” Gilvarg said, ​“I think people would have said, ​‘He works for her. She’s going to protect him.’”

Does X Mean X?

The argument revolves around the definition of ​“X” on a table of uses permitted in different types of zoning districts in the city, spelled out in Section 42 of the zoning ordinance.

In the staff report, Talbot referred to the first part of the table, which states that any use permitted in a high-middle density district is also permitted in a general business district. (The two adjoining buildings in question are located in a general business district.) Therefore, he concluded, Mandy can build the three apartments on Westerleigh Road and Whalley Avenue.

In her appeal, Atkinson (pictured above) referred to a section of the table further down, which deals with ​“new construction” in pre-1963 structures with a first floor zoned for commercial use. The two buildings Mandy seeks to develop fit those criteria, she said. This section of the table shows an ​“X” for ​“mixed-use residential uses” in business districts. The table’s key defines ​“X” as ​“not permitted.”

The definition of ​“mixed use” in the ordinance is listed as ​“a structure occupied by one or more of the following ground floor uses: retail goods and personal services, entertainment establishments, food services, offices, or other similar high traffic non-residential uses that contains but is not limited to, upper story residential uses.” Mandy is building residential floors above existing commercial space. Therefore, Atkinson argued, Mandy’s mixed-use construction project is not allowed in a business district.

But Talbot and Gilvarg said that, in this case, contrary to the table’s key, ​“X” does not mean ​“not permitted.” Instead, Gilvarg said, it means, ​“Ignore this” because the regulation was spelled out earlier in the table. The second part of the table is meant to establish a specific definition for mixed-use developments for certain other districts, ensuring that residential uses are not on the first floor. However, a general business district, like the one in which Atkinson lives, could have residences on the first floor of a mixed-use building.

Gilvarg said she understands why Atkinson interpreted the table otherwise. She said zoning staff is ​“relying on history” in making decisions like these. Zoning staff knows the differentiation between the districts when deciding whether to approve new developments. ​“We make thousands of these interpretations every year,” by referencing city ordinances, Gilvarg said.

Call For Transparency

Atkinson said she wanted to hear from the board and not from Talbot at Tuesday’s meeting.

“He’s reviewing his own decision,” she said.

Talbot said he wrote the report in order to present a more thorough explanation of his point of view. ​“The board decides whether I did what I was supposed to do,” based on that explanation, he said.

The board has a number of options, Gilvarg said. It can decide to sustain Talbot’s opinion. Or it can request that Mandy ask for a special exception or variance to continue development. The company also has rights as a property owner, which have to be weighed in the process, Gilvarg said.

The appeals process Atkinson used is not widely known. She said she found out about it through Beverly Hills/Amity Alder Richard Furlow. She said she was disappointed that the system is not more transparent and that more opportunities don’t exist for public input.

Furlow spoke up during Tuesday night’s public hearing to echo her sentiment. He called for a ​“process to let neighbors know … whenever there is going to be any change” in their vicinity. The buildings used to be office spaces, meaning people needed parking just eight hours a day, he said. But the conversion from office to residence means parking will be in higher demand on those streets. A decision about such a major construction project ​“should have come before you,” he said to the board. ​“I don’t feel that was really just.”

Two other neighbors spoke up in favor of the appeal, asking the board to reconsider Talbot’s decision.

Adelizzi requested board members take more time to look through the report and city ordinance before making a decision. Gilvarg said she will be the zoning staffer to liaise with neighbors going forward, if they need more information or documents, ​“given the intensity of feeling” on their side. But any discussion about the application and report has to happen ​“in front of the public,” she said.

The public hearing is scheduled to resume next month.