Canal Winchester Village Council has upheld an appeal by the Burger King Corporation to build a restaurant on land east of Gender Road between Canal and Waterloo streets.
Background
Last June planning and zoning staff recommended the proposed conditional use for the site stating it was compatible with adjacent land use and zoning and it would not adversely impact traffic.
However, according to Burger King attorney Bruce Ingram, before the planning and zoning commission met, Development Director Chris Strayer recommended denial of the conditional use based on traffic and an alleged plan by Casto for full service restaurants in the area.
Ingram also referred to a February 1997 agreement between the developer and the village specifically stating Canal Winchester would not deny zoning permits or building permits approved for development based on adverse traffic impact as a result of the development. The village also agreed not to contest any action and waived any and all rights it might have in contesting such action.
However, the planning and zoning commission rejected Burger King’s 2007 application, which Ingram argued was a violation of Canal Winchester’s own zoning code and the 1997 agreement, and alleged Strayer’s comments were both unsubstantiated and unlawful as a reason for denial.
An appeal hearing was held on July 30 before council, who voted to remand the conditional use back to the planning and zoning commission for further consideration. Prior to an Aug. 13 commission meeting, Ingram sent a letter to Chairman Bill Christensen saying no new traffic studies or any other evidence not already in the record before planning and zoning or council were permissible. The attorney also demanded that Christensen, T.J. Harper, and Shawn McCoy recuse themselves from voting because they spoke at the public hearing against the conditional use appeal.
Another hearing
On Dec. 3, council held another public hearing to discuss the appeal. Ingram said there was no traffic study from the village to uphold their contention the fast food business would negatively impact traffic. A study commissioned by the company found an increase of only 20 new vehicles during peak hours at each intersection because of the Burger King development.
"That would be a negligible impact," noted Ingram, who again pointed out, according to the 1997 agreement, traffic could not be used as a reason for denial. Ingram also reminded council the Casto discussions regarding a desire for full-service restaurants were concepts with no paper trail to substantiate comments.
"We believe the only evidence before planning and zoning, legitimately, was the CESO (the engineering firm conducting the traffic study) report which said there was no adverse impact on traffic."
Village Law Director Gene Hollins thought many facts and comments in the discussion were open to interpretation and he felt his position would be upheld. He said the issues are both disputable and matters of interpretation, which he would defend whatever decision council made.
Council viewpoints
Councilman Victor Paini defended his plan to vote against the conditional use by saying if a straw poll were taken of residents, he felt they would not want another fast food restaurant in Canal Winchester. He also opposed what he termed "bullying tactics" employed by company legal representatives in the debate.
"I want the best for this village and I don’t think it is the best for the community," said Paini, who said he signed a petition a couple of years ago in support of a Burger King, but not at Gender Road, since there are 13 fast food restaurants in operation in the area.
Councilwoman Bobbie Mershon stated there was nothing in the zoning code prohibiting Burger King from developing the property. Councilman Bruce Jarvis said reliable sources confirmed the comments made by Casto regarding the desire for sit-down restaurants east of Gender, however nothing was committed in writing.
"I object to the methods used in this council chamber," continued Jarvis regarding the approach used by Burger King representatives. "There was an underlying threat of litigation all the way through. Burger King has been very thorough…but brow beating is not right."
Council voted 5-1 to toss out the planning and zoning commission ruling.
