OCEAN CITY – Just how much government input is too much for conditions of approval on a new business or development was the subject of a lively debate this week.
On Tuesday, the Mayor and Council met with the Ocean City Planning Commission for a second joint meeting to discuss a wide variety of issues related to comprehensive plans, zoning code amendments and the like. The two bodies met earlier this year for the first of what will likely be many joint sessions to clear the air over certain issues, and the second was Tuesday afternoon at City Hall.
One of the topics for discussion right off the bat on Tuesday was the planning commission’s frequent recommendations on conditional use requests. Developers or business operators frequently apply for a conditional use to allow their project to be located in an area where the existing zoning might not otherwise allow it.
There are many examples of a conditional use request for a business operation in an area otherwise zoned residential. By definition, a conditional use request is just that. The planning commission reserves the right to put conditions on their favorable recommendations that ultimately head to the full Mayor and Council for approval.
For example, the planning commission might ask for, and receive, from the developer conditions that might make a project more palatable for the neighborhood in which it is proposed. In one recent example, the planning commission recommended a conditional use request for an axe-throwing facility and conditions included a supervisor of a certain age must be on hand and the axes should be carefully stowed away when the business is not in operation.
In another example, a proposed uptown mini golf and laser tag operation was required to have a manager on duty of at least 25 years of age when the facility was open late at night. In some cases, the planning commission requires an on-site live-in resident agent for a workforce housing project. In other cases, the planning commission might require certain ambient light or noise conditions to minimize the impact on adjacent residential neighborhoods.
In most cases, the business owner or project developer voluntarily agrees to the conditions imposed by the planning commission even if it is otherwise code compliant. In some cases, the planning commission can withhold a favorable recommendation if the conditions are not agreed upon.
The Mayor and Council ultimately make the final decision based on the recommendations of the commission. At the outset of Tuesday’s joint session between the two bodies, Councilman John Gehrig said some of the conditions recently have bordered on government overreach, especially those imposed on businesses regarding hours of operation or the age of supervisory employees, for example.
“I appreciate everything the planning commission does for Ocean City,” he said. “If there was one thing on which I’ve been relatively consistent is when we get these conditional uses, and it get into business operations. I don’t think it’s our job to tell businesses how many employees they must have or how old they must be and that kind of thing.”
Gehrig cited the recent favorable recommendation for the axe-throwing competition venue and some of the conditions imposed on it by the planning commission.
“I look at the axe-throwing business or a mini golf or laser tag business,” he said. “I just think we need to stay out of business operations. It’s not our job as elected officials to dictate those kinds of things. We have ordinances to cover those things. Whenever I disagree with the planning commission’s recommendations for conditional uses, it’s usually about that.”
However, Planning Commission Chair Pam Buckley said it was within the commission’s purview to seek as many conditions on a conditional use request as to make a new business or development the least impactful on the adjacent neighborhood, or perhaps more importantly, to ensure the safety of residents and visitors.
“I disagree with your disagreement,” she said. “A conditional use is a use we feel is appropriate for Ocean City, but we’re allowing it somewhere located in an area where the zoning would not necessarily allow it. A conditional use is just that, it comes with conditions. We have an express purpose in keeping residents and visitors safe and ensuring quality of life.”
Buckley cited an example of a conditional use request for an underage nightclub on which the planning commission recommended a 1 a.m. closing time.
“For one example, we have an underage club where people are dropping off their teens and leaving them there until 2 a.m.,” she said. “That’s why we put a closing time on it. We don’t want 13-year-olds coming out and getting on the bus at the same time the bars are letting out. A condition could be facilities that allow kids under 16 have to be closed by 1 p.m. People deserve to have us look out for them when recommending these things. We’re always looking at ways to keep people safe, because, frankly, a lot of people come across that bridge and take their brain out of their skull and put it in a box because they are on vacation.”
Planning Commissioner Palmer Gillis said imposing conditions on a conditional use request was under the purview of the appointed body.
“It’s within the authority of the planning commission to look out for the health and safety of the neighborhoods,” he said. “Our standard is if it’s code-compliant, but there are certain things we can ask for if we think it makes it better. There is nothing in the code requiring bike racks, but we ask for them and they comply. There is nothing about eight-foot sidewalks in the code, but we ask and they comply. There is a certain amount of give-and-take, and when we ask for these things, it’s to make a project better.”
Councilman Peter Buas agreed with Gehrig and said there appeared to be some randomness to the conditions imposed by the planning commission on new businesses at times, particularly with age requirements or hours of operation, for example.
“There’s a certain arbitrary element to it sometimes,” he said. “A 24-year-old may not be any less capable of running a business than a 25-year-old. I grew up in the family business and I was perfectly capable of running a miniature golf course when I was 16 years old.”
Mayor Rick Meehan suggested perhaps the issue needed more scrutiny. He said the current code does not appear to address some of the issues being discussed on Tuesday.
“Is there a line of demarcation?” he said. “Is there a point when adult supervision should be required for a business open late at night? I’m not sure we have that in the code, and maybe it’s something we need to look into. Conditional use is a valuable tool, but it comes with conditions. It allows a use in a particular zoning designation in an area where it might not otherwise be allowed.”
Buckley cited yet another example of the planning commission imposing stringent conditions on a proposed new business operation.
“There are so many reasons for a conditional use,” she said. “We had an application for a water sports operation near the Inlet and that current and the applicant was 45 years old and didn’t know how to operate the boats.”
