Agenda - Planning Commission - 11/09/1995

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Page 8 -- October 15, 1995 Z.B. questions about parking and how close the two daiquiri stores were to each other. It also stated that the proposed use was reasonably compatible with sur- rounding development and that there was enough space to adjust the plan and provide adequate parking. A later report specified that Clark revised his site plan to resolve the parking problem. At the board's meeting, a neighbor's representative opposed 'the applica- tion. Clark decided to drop the request for the lounge' and proceed with only the daiquiri shop request. To grant the variance, Clark needed four of the seven board members' votes. He did not get enough votes, so he did not get'the vari- ance. The board gave no reasons for denying the variance. Clark appealed to the City Council, again going forward with only the dai- quiri shop. While the appeal was pending, the neighbor decided not to oppose the project anymore. At the council's hearing, it was shown that Clark's request met all land use requirements and complied with the requirements for a pack- age liquor store. Nevertheless, the council refused to modify the board's decision and sent it back to the board without any instructions. The board decided to hold another public hearing. Before the hearing, Clark asked a court to order the board to grant the variance, saying he had a clear legal right to it. He alleged that someone who had authority in appointing board members, and who owned another area daiquiri shop, influenced board members to delay or defeat his request. The city argued that the lawsuit was premature because the matter was still pending before the board and Clark had to exhaust his administrative remedies before suing. The court found in favor of Clark, saying the council had no authority to send the case back to the board without specific instructions or a specific request for action. Making Clark go back to the board for another public hearing denied him access to the courts. The court found evidence that the board was politi- cally motivated. The city appealed. DECISION: Affirmed, in favor of Clark. The lower court properly ordered the city to issue a variance for the dai- quiri shop. Clark's lawsuit was not premature. He followed the appropriate procedures for getting a variance. Under the city's ordinances, Clark had a right to appeal to court when the council refused to reverse, affirm, or modify the board's decision. The city admitted the council had no authority to send Clark's appli- cation back to the board instead of making a final decision. Nothing new hap- pened at the city council hearing that called for further board consideration. The lower court properly ordered the city to issue the variance. The deci- sions by the board and the council were arbitrary. Under the circumstances, there was no reason to deny the variance. The land use reports submitted to the board showed Clark's plans for the daiquiri shop complied with the board's guidelines, and the parking problem was corrected. There was nothing in the board's record to show any valid concerns about public health, safety, and welfare.