Lot 626, flanked by 811 Vassar Road on the left and 809 Vassar Road on the right. Photo by Vernon Miles.
Steve Hales currently owns the dwellings at 809 and 811 on Vassar Road, but Hales would rather own 809, 811, and a subdivided lot 626. In theory, lot 626 is comprised of the empty space between the houses on lots 809 and 811. The plan was passed by the Planning Commission in a 5-1 vote.
After the commission recommended approval of the subdivision, the neighbors appealed the decision to the City Council. At its June 13 public hearing, while the City Council did not directly overturn the Planning Commission’s recommendation, the subdivision request was sent back to the Planning Commission with instructions to reconsider with a different set of comparative models.
During the discussion at its May 5 meeting, the first time the subdivision was brought before the Planning Commission, the commission sided with planning and zoning staff in recommending approval over the objections of neighbors. The staff compared the proposed property on lot 626 to other “pie-shaped” lots in the Clover neighborhood. Neighbors argued that 3/4 of the properties lot 626 were being compared to were located on a cul-de-sac and were categorically separate from a house located on a curve in the road. However, staff found that the lot size was comparable within reason and the pie-shaped space made the spaces applicable, regardless of whether or not they were on a cul-de-sac.
The neighbors’ appeal of the decision came with 15 valid signatures, representing 30 percent of the land area within 300 feet of the property (the minimum requirement for an appeal is 20 percent), the appeal was considered valid and was taken up before the City Council at its June 13 public hearing.
According to city zoning ordinances, a subdivision must be granted provided if it meets three requirements. The first are general, or technical, requirements. The second, which was touched on briefly during the Planning Commission and the City Council meeting, is individual zone requirements like lot area frontage or property width. However, the majority of the debate in Saturday’s hearing centered on the third requirement: that the subdivision be in keeping with the character of the neighborhood.
According to City Planner Nathan Randall, the character requirement means that new lots must be substantially consistent with other nearby lots. Lots can either be compared to original specifications for the neighborhood or, as in this case, to nearby lots of similar shape and size. New lots are required to be at least 50 percent the size of other lots selected for comparison. The newly created lot 626 would meet this requirement, but only barely. At 9452 feet, the lot square footage was near the bottom of the comparisons, and in terms of width it came in last at 67 feet.
During the Planning Commission meeting, Stewart Dunn, who abstained, expressed concerns about lot size and width. During the City Council meeting, Vice Mayor Allison Silberberg echoed these concerns. Specifically referencing the property’s width, Silberberg supported sustaining the neighbors’ appeal.
During the public comment, nearby residents expressed a mix of opposition and support to the subdivision request.
“I’ve dealt with the city, they’re tough, and I appreciate that,” said neighbor Jason Van Wagner. “It keeps the neighborhood the way it is, and it means that there’s a reason this subdivision was passed. People might disagree … but it meets the rules and regulations, so not approving it would be arbitrary.”
Helen Lloyd, a local resident, spoke against subdivision. Lloyd said comparing the house at the top of the hill to others in neighborhood would be akin to comparing apples and oranges. Vassar Road, she argued, has different character than other parts of the neighborhood.
“The lots are larger than the rest of Clover: deliberately to give them a sense of importance, of space, of wealth, as compared to the rest of the neighborhood,” said Lloyd. “Vassar Road was meant to be the crown jewel of the neighborhood.”
The City Council expressed its own concerns about the subdivision, but struggled with finding a way to sustain the appeal within the legal parameters of the city ordinances.
“Did the Planning Commission go against the ordinance as written?” said Councilman Tim Lovain. “It’s a tough call to say that’s true. I think they struggled mightily and took a great deal of time, and it’s hard for me to say they did it wrong. The problem is with the underlying law. This is a pretty significant thing to say that they got it wrong, that’s a tough thing to say, and I don’t think I’m quite there.”
“I’m struggling with this,” said Councilwoman Del Pepper. “I hate subdivisions, they tighten neighborhoods, and I’m just not pleased with the comparatives we have here but I don’t know what else we can do about that. I’m not sure where we go from here.”
“I’m in a place where I’m uncomfortable voting either way on this,” said Councilman Justin Wilson.
Lovain and Pepper expressed a desire to defer the item until the law concerning the requirements to subdivide property could be reexamined, but City Attorney James Banks said that the property subdivision cannot be evaluated by standards written ex post facto.
“The question before you is: did the Planning Commission use the correct legal standards in reaching its decision,” said Banks. “If you find that they did not, I would suggest to you that you state on the record specifically what it was that the Planning Commission did or did not do that you believe violated the law that’s before you. Even though [the ordinance] may not be as clear as you would like it to be, that is the relevant law that is in front of you, that is the relevant law that must drive your decision .... This is the relevant law that will decide the case, even if you change the law tomorrow ... If you sustain the appeal and deny the subdivision, I would urge you to state on the record specifically the reasons why.”
Banks also noted, half-jokingly, that a clear statement from each of the City Council members on the legal grounds the subdivision was denied on would make his job as city attorney much easier.
However, Silberberg suggested that if the City Council found that the comparative area used by the Planning Commission, specifically the cul-de-sac at the end of Vassar Road, was invalid, the item would be sent back to the Planning Commission for review.
In a 4-3 vote, the City Council remanded the appeal back to the Planning Commission with instructions to find a different selection of lots for comparison. The item will be presented to the Planning Commission again in the fall, a little over one year after Hales had initially approached city staff about the subdivision. After the decision, Hales expressed his surprise and disappointment in the City Council’s decision.
“If the City Council isn’t going to listen to the staff or the Planning Commission, then what’s the point?” said Hales “Those guys are supposed to be the experts.”
Hales suspected the decision was politically motivated and that members of the council were afraid to look like they’re in the pockets of developers during an election year.
“But we’re not developers,” said Hales. “We’re just regular folks who can’t get their lots subdivided while on the Waterfront, [actual developers] seem like they can do whatever they want … I’m a homeowner. I live here, it’s my land … Both of us have aging parents, so if we wanted to build a home next to ours and couldn’t, that seems wrong.”