BALTIMORE — People in West Baltimore are taking legal action following a decision by the Board of Municipal and Zoning Appeals to allow for a conditional use of a drive-thru on Gywnn's Falls Parkway.
Legal documents obtained by WMAR-2 News states, "there was essentially no evidence presented by the applicant addressing issues that the Zoning Code requires the BMZA to consider, and the BMZA made clear mistakes of law, and misapplied the law it purported to follow."
The appeal surrounds the property at 2600 Gywnn's Falls Parkway. It's currently an auto repair shop. There are proposed plans to transform it into a fast-food restaurant, possibly a Checkers Rally franchise.
"There’s multiple reasons why that we don’t need a Checkers here," said Jerome Nowlin.
Nowlin lives right next store to the proposed project. He knows the project will lead to increased traffic, accidents, and litter accumulation.
"There's the big Mondawmin Mall," Nowlin said, pointing across the street. "All the food joints are over there. Put the Checkers there, don't put it next to resident's homes.
As for traffic and accident concerns, the paperwork submitted on behalf of the community states BMZA didn't receive proper evidence from the project's applicant. The project is also close to educational properties.
"Zoning Code § 5-406(b) requires the BMZA to consider school proximity before approving a conditional use. There is no indication in its Resolution approving a drive-through restaurant one block from Gwynns Falls Elementary School that the BMZA took that charge seriously. Rather the BMZA blandly opined that having cars enter, exit, and queue up at a drive-through restaurant by using the same sidewalk area that hundreds of pre-K to fifth grade children must use every day in order to get to and from school, would not create any 'additional safety concerns above and beyond those that already exist.' The conclusion defies logic. The applicant presented no evidence to support it."
The legal challenge is just the latest effort taken by community members to stop the project.
"It's sad that it's come this far," said businessman and former city councilman Lawrence Bell. "When a community doesn't want something like this it should stop."
Bell said it's apparent those in power aren't listening to the people.
"The best thing would be if the people down City Hall would pull the plug on this thing," he said.
In a statement to WMAR, a city spokesperson said:
"The owner applied for a conditional use for a “drive thru”. After a public hearing, the Board reviewed evidence and testimony from both the owner and the opposition during a public hearing. The Board voted to grant the conditional use application. At the time the Board granted the appeal, they knew the project would still have to go through site plan review prior to any permit for construction would be issued. Site plan review is where DOT and Planning would review the drive thru plan and require Code safety measures and address any traffic issues. Several community members appealed the Board’s decision to the Circuit Court. While an appeal is pending, the application is stayed. It does not receive any additional review or process and NO permit can be issued until the appeal is resolved by the Court.
Regarding the conditional use criteria that the Board must review applications under, the Code is very clear on what the Board must find:
Article 32, Section 5-406(a) identifies the Limited criteria for denying.
The BMZA may not approve a conditional use unless it finds that:
(1) the establishment, location, construction, maintenance, or operation of the conditional use would not be detrimental to or endanger the public health, safety, or welfare;
(2) the use would not be precluded by any other law, including an applicable Urban Renewal Plan;
(3) the authorization would not be contrary to the public interest; and
(4) the authorization would be in harmony with the purpose and intent of this Code.
In addition, Maryland case law states the standard upon which the Board should review the facts presented from a conditional use request is whether "at the particular location proposed" an adverse effect will be created "above and beyond that ordinarily associated with "the particular conditional use."