Sunday, May 19, 2024

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Burlington board of adjustment dismisses variance request for boarding house


Burlington’s board of adjustment has dealt another defeat to a local boarding house operator as it struggles to keep a Webb Avenue establishment open in spite of the city’s efforts to forcibly close it.

During the course of a two-hour quasi-judicial hearing last week, Andrews Properties of Elon failed to convince the board of adjustment to issue a variance that the company had hoped would legalize the operations of this bedeviled business at 504 West Webb Avenue.

In the end, Andrews was never even able to present its proposal to the board in light of a preemptive motion from the city, which argued the property owner’s request for the variance hadn’t been properly filed. The board ultimately voted 4-to-1 to dismiss the company’s request based on this motion.

The Isaacson Sheridan law firm had originally applied for the variance on behalf of Andrews Properties in order to allow the company to exceed the five-bedroom limit that the city normally imposes on rooming establishments. The law firm’s application specifically sought the higher allowance for Andrews’ Webb Avenue property, which had already drawn two contrary rulings from the city’s board of adjustment prior to the hearing last week.The property at 504 West Webb Avenue initially came before this quasi-judicial body in December of 2020 after Andrews Properties was dinged by the city’s inspections department for allegedly operating the establishment without the city’s permission. Although the residence is situated within an office and institutional district, where boarding houses are theoretically tolerated, the inspections department had argued that the proprietor had never obtained the special-use permit that’s needed to operate the business legally. The department also rejected the property owner’s claim to a grandfather exemption that would’ve made the special-use permit superfluous.

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The board of adjustment ultimately ruled in the city’s favor, although a superior court judge later remanded the case back to this quasi-judicial body due to procedural issues involving testimony from one of the city’s key witnesses. The board nevertheless ruled for the city once more when it rehashed the case at a second hearing earlier this year.

Amanda Hodierne, an attorney with the Isaacson Sheridan law firm, filed the aforementioned variance application in the wake of the board’s second ruling against Andrews Properties. This application had been slated to come before the board of adjustment on Tuesday, May 10. The request was nevertheless upstaged by a preemptive motion from the city’s legal department that claimed the property owner’s application had been improperly tendered.

Sherri Hamlett, a private attorney who has represented the city in this case, told the board’s members last Tuesday that Andrews couldn’t legitimately apply for a variance without first having obtained a special-use permit to operate a boarding house at the Webb Avenue location. Hamlett insisted that Andrews should’ve inferred the need for this permit based on a letter that the city’s inspections director had previously shared with the company.

“You cannot create a use by variance,” Hamlett added. “You also cannot expand a use by variance if the use did not exist…And all of this could’ve been avoided if the Andrews simply followed the directive in the letter that told them ‘you’ve got to go through the change of use process.’”

Hodierne, who was also on hand for last Tuesday’s hearing, conceded Hamlett’s point that a variance can’t legalize a land-use which doesn’t already exist. She nevertheless argued that, in this case, her clients are trying to salvage a boarding house whose operations are already something of a fait accompli.

“This is a big deal for my client, and they’re providing homes for eight people who have lived there for years,” Hodierne added. “We’re simply trying to line up the chess board in the most appropriate way under your rules and policies…We understand there are some technical requirements we have to meet. We’re just trying to find the best way to do that.”

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Hodierne said that her clients ultimately chose to apply for a variance, rather than some other remedy, based on the facts as they previously understood them. She added that, contrary to Hamlett’s assertions, the city’s inspections director never explicitly steered Andrews in the direction of a special-use permit. In fact, she insisted that the option of a special use was never actually broached until Hamlett moved to dismiss on the city’s behalf.

“Nowhere in any of the communications was it ever stated to my client that he needed a special-use permit to operate this use,” Hodierne went on to recall. “This is an upstanding business operator who is trying to provide housing to the community that’s dreadfully needed. But the target keeps moving…We didn’t need to find out [about the special-use permit] in a ‘gotcha’ moment delivered in the eleventh hour before the hearing.”

Hodierne went on to elicit an admission from Russell Williams, the city’s inspection director, that the “change of use” application which he invoked in his letter isn’t the same thing as a “special use permit.” Nor, as Williams also acknowledged, is it a substitute for a special-use permit, which Andrews would still have to obtain from the city’s planning department, as opposed to inspections.

Hodierne went on to conclude that her clients seem to have gotten the runaround from the city, which led them to apply for what they belatedly learned is the wrong land-use procedure.

“It appears to me that there has been a lot of misdirected energy,” she added, “and I think there is an opportunity to have a win-win here…We don’t care what the title is. We just want to be able to operate safely under your laws.”

Hodierne’s arguments seemed to gain some traction with the city’s board of adjustment. Even so, a majority of the group ruled in favor of the city’s motion to dismiss based on the legal arguments that were before them that morning. Charlie Beasley cast the lone vote against the city’s motion, which went on to pass by a margin of 4-to-1.


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