City blocks Mellow Mushroom expansion 

Spaced Out: City zoning handcuffs downtown businesses for sake of the neighbors

Michael Shem-Tov can picture the patio in his head. The Mellow Mushroom owner can see the tables and the landscaping bordering the rooftop. What he can't see is where the cars are going to park. A tactic by the city to ensure that downtown developers contribute the parking needed to accommodate growth has been used by unresponsive neighbors as a way to block Shem-Tov's dream.

The city's Zoning Board of Appeals denied his application last month for an 800- square-foot rooftop patio after years of appeals to the neighbors, even though a mountain of promised concessions had won over city staff. If there was any doubt the refusal hinged on concerns from neighbors, they were washed away minutes after the refusal when a similar request on Upper King won swift and unanimous approval for a nearly identical request because of a lack of opposition.

Mushroom's second floor leads out to a small roof over the back of the building, providing about 880 square feet of potential. Shem-Tov has envisioned sprucing up the barren roof since he first opened in 2001, but has been consistently sidelined by neighbors who have unrelentingly refused a variety of extravagant proposals by Shem-Tov to win their support.

He could do what he wants with the roof by right, city staff have said, if only he had the five parking spaces required for the expansion. Because he could find only four spots under a maximum six-month lease (missing the city's requirement of a 10-year lease), he went before the Zoning Board, who factors in not only his difficulty in finding the spaces, but also his neighbors' concerns about having diners next door.

"We feel this project would be a total invasion of privacy and significantly devalue our property," says Patricia Ellison, who rents out the apartment next door.

When he first envisioned the rooftop patio, Shem-Tov made the standard pitch to neighbors. When they refused, he thought he could win based on the project's merits in front of the city's Zoning Board. No dice.

More than five years later, Shem-Tov took another stab after the city's ban sent smoking patrons out into the street. This time he was determined to appease the neighbors. An upgrade to the stairwell would provide increased security for the apartment that shares a wall with the rooftop. New designs incorporated tall, thick greenery to serve as a sound barrier and provide some privacy currently not afforded to the apartment. When neighbors complained that some natural light would be blocked, he offered to install a sky light. When they still refused, he offered a long-term lease on the property. Still nothing.

So Shem-Tov went back to the city. A new College of Charleston dorm/garage across the alley negated the noise argument the neighbors had made — nothing Mellow Mushroom could produce could do much worse than the blaring from the air units posted on the side of the building. And city staff had come around to the idea that the on-top-of-each-other nature of urban living isn't supposed to be the seen-not-heard experience of Wisteria Lane.

"I don't think it's unusual to anticipate that there's going to be some noise and inconvenience occasionally," says Lee Batchelder, the city's zoning administrator. "It's not a residential neighborhood. That's one of the attractive things about living in this neighborhood."

City staff had first refused the request, but worked with Shem-Tov on a list of concessions that addressed their concerns, including limiting the patio to dining (no bar, music, or TVs), moving the restaurant's AC unit, adding a water fountain to provide more white noise, and closing the patio at 9 p.m. during the week and 10 p.m. on the weekend, which Shem-Tov was willing to push even earlier to ensure approval.

It was still not enough to appease neighbors and the zoning board.

Shem-Tov is looking for alternatives that would provide the privacy needed or address the city's parking requirements. He says he understands why the city requires parking from developers, but he takes issue with the zoning board's heavy-handed use of the veto pen when neighbors refuse to find common ground. Only one of the board members told Shem-Tov that she had actually walked the site, and he felt a stack of letters of support from nearby King Street businesses was barely reviewed by the board prior to its refusal.

Weeks later, Justin Broome was set to go before the Zoning Board with his own request for a parking variance for his new Rutledge Avenue restaurant, Fuel. The city's zoning required 18 parking spaces, but he could only find 15. Rather than face the same wall Shem-Tov couldn't overcome, Broome worked with city staff to downsize his dining area to get within the 15 spaces.

"It was a quicker solution," Broome says of the deal. "Being on a budget — that was more important."

Chris Price, who's leasing the space to Broome, says he's been fighting the city's parking requirements up and down the peninsula. Developers know they need available parking to be competitive, he says, but city requirements are tough on businesses.

"We've lost tenants in downtown Charleston to the suburbs because it's so expensive to rent parking and find parking," Price says.

The city ordinance now allows the first 5,000 square feet of most multi-use developments to go without parking requirements, Price says.

"They're making steps in the right direction, but more has to be done," he says. "If you want businesses to mature, you have to be flexible."


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