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Planning Commission terminates restrictive covenant for antique shop

Monday, October 31, 2011 by Elizabeth Pagano

The Planning Commission has given the go-ahead to modernize Dreyfus Antiques, giving owners the latitude to open another type of business at the busy corner of Lamar and MLK Jr. Boulevard.


Currently, a restrictive covenant limits use of the site to antique sales. It also stipulates that the zoning roll back to Limited Office (LO) should Dreyfus Antiques close.


The Planning Commission voted to terminate the covenant, which means the property would remain Neighborhood Commercial, but allow financial services, personal improvement services, and personal services as permitted uses as well as general food sales and restaurant as a conditional use.


Commissioner Alfonso Hernandez said that he was “a little bit bothered” by the zoning rollback not taking place as was stated in the restrictive covenant.


“Times have changed, things are different. That kind of puts me over that hump,” said Hernandez.


Ambrust & Brown attorney Richard Suttle told the commission that they have private restrictive covenants with two of the neighborhood associations and are currently working on a third.


Suttle also pointed out that the new zoning was consistent with the Future Land Use Map.


Mary Sanchez, has lived in the West University area since 1971, lives on Cliff Street, essentially above the property.


“In 1997, when the restrictive covenant with the LR zoning went into effect, we were sure that as soon as the antique store, the zoning would also disappear and go back to LO,” said Sanchez. “If this property is zoned LR permanently, without restrictions, all of the properties on Lamar further up which are now LO will, like dominoes, apply for LR zoning also.”


Sanchez expressed concern about placement of dumpsters on the property and potential noise from outdoor seating, even with a closing time of 10 pm. “Noise and smells rise, and we would get it all,” said Sanchez.


Sanchez also complained that the change could further exacerbate use of a path down the side of the hill by homeless people. She explained that they live in caves on the hill.


“I vividly remember the night that we voted on this in 1997,” said Chair David Sullivan. “Even though this is adjacent to a neighborhood, this is a very important piece of property to tens of thousands of people who travel up and down Lamar, who use the trail on Shoal Creek.”


The Planning Commission  placed additional conditions prohibiting drive throughs, limiting hours of operation, and including a fence along the rear of the property.


“I just want to let you know that I will not vote for such an action, because I don’t want to prohibit pedestrian access,” said Sullivan. “It would require pedestrians to go out onto MLK, or out onto Lamar.”


When asked by Commissioner Saundra Kirk if he would rather pedestrians trespass through the woods, Sullivan affirmed this was true.


“It’s not trespassing unless there is a sign that says, ‘No Trespassing’,” explained Sullivan.


“I do not wish that on any neighborhood,” said Kirk.


The commission voted 5-1 to terminate the 1997 restrictive covenant, and the case now moves on to City Council. Sullivan voted against the change. Commissioners Dave Anderson, Richard Hatfield and Jean Stevens were absent.


While the applicant agreed to prohibit direct access to Lamar from the property, they do have access on adjacent property through an existing driveway.

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