A zoning problem is festering with neighbors and Smashburger—a new tenant in a remapped sliver of Sheffield—which is now being schlepped off to 2nd Ward Alderman Bob Fioretti.
Despite the fact that the city has issued the required building permits and Smashburger is nearing completion of their tenant improvement build-out, the neighbors whose parcels border the rear of the shopping center don’t want a restaurant of any kind at that location.
Under the existing ward map the shopping center is within the 43rd Ward of Alderman Michele Smith and the Clybourn Corridor Planned Manufacturing District which prohibited “taverns, restaurants of any type, drive-in establishments, liquor stores, theaters, arcades, garages and food processing of any type.”
A Special Use was granted by the Zoning Board of Appeals when the properties were divided and developed into a shopping center and several residential parcels. The Special Use restrictions are not found in the City of Chicago Zoning Code or the Planned Manufacturing District (PMD) ordinance.
However, the objecting neighbors, some of whose properties are complete with a private basketball court and bordered by the most pristine alley ways in the city, apparently have the clout and legal resources to locate the restriction found only in the 1989 minutes of a Zoning Board of Appeal and then complain to the office of Ald. Michele Smith.
Without the subsequent codification into the building code or PMD ordinance according to attorney John Lag, there is an open legal question as to whether the minutes of a 1989 Zoning Board of Appeal hearing is binding upon the City of Chicago, the shopping center landlord or Smashburger.
The fundamental issue is “notice” of the restriction which was not found in the zoning review by either the landlord or the city when permits were issued. Apparently, Smashburger who already has a large “NOW HIRING” banner in the window had no knowledge of the restriction at the time the lease was signed and they applied for city permits.
The neighbor’s concerns center on the prospect of rats and parking problems according to attorney Ted Wrobleski, chair of the Sheffield Neighborhood Association Planning Committee who offered to mediate settlement discussions which was rejected out-of-hand by the neighbors.
Parking concerns seems to be a particularly weak pretense since the shopping center faces Clybourn Avenue and has its own parking lot with entrances/exit onto Clybourn Avenue at both ends of the center. There is just no need for patrons to traverse the side streets and consume residential parking.
Importantly, attorney Lag believes that the adjoining neighbor’s unwillingness to mediate a compromise with Smashburger and the landlord may open the door to less desirable neighbors if a court were to consider the minutes of a zoning appeal, without subsequent codification, nonbinding on prospective tenants to the shopping center.
Smashburger president Scott Crane has said that he “appreciated the neighbors who took the time to meet with us last month and share their questions and concerns about the development of our restaurant.” While “we need to defer to the landlord on all legal matters” Crane feels that Smashburger “is going to be a great addition to the neighborhood.”
As of this afternoon, work was continuing with the general contractor putting the final touches on the new Clybourn Smashburger location raising questions about the city’s responsibility for indemnification, legal fees and the costs should the neighbors decide to bring legal action to enjoin the restaurant.
Not surprisingly, the Smashburger issue also has become a confusingly exacerbated political issue since Zoning Committee chairman Danny Solis sent a letter to colleagues informing them of his decision to implement the new ward boundaries. Rather than eliminate confusion, Ald. Solis’ decision tosses the political hot-potato into that of lap of 2nd Ward Ald. Fioretti under the 2012 Ward Remap. Instead of leaving the concerns of Ald. Smith’s 43rd Ward constituents for her to resolve, the landlord and neighbors now have another layer of uncertainty about which aldermen should sign off on a zoning changes if needed.
Despite a League of Women Voters lawsuit challenging the 2012 Ward Remap, Ald. Solis’ unilateral decision to follow the new ward boundaries also ignores legal advice outlined in a February 2, 2012, memorandum written by Corporation Counsel Stephen Patton. The justification offered by Ald. Solis is based on the pretense of complaints from developers “confused about who to talk to.”
Interestingly, zoning and land use decisions that go through the zoning committee comprise a serious amount of the "relief" the Council is able to afford which makes chairing the Committee lucrative for Ald. Solis.
Ald. Solis (25th) has said that he intends to continue the longstanding tradition of “deferring to the aldermen of the ward in which zoning changes or sign order” is located. In the case of Smashburger, political deference under the remap will now go to the 2nd Ward Ald. Fioretti—not 43rd Ward Ald. Michele Smith.
As the situation presently stands, there’s an impasse with the neighbors who've dug in their heels with a no compromise position. Although no legal action is pending the situation seems poised to smash something other than a burger between the City and neighbors living large behind the shopping center.