(7th in a series of posts on 306 S. New St.)
Remember 306 S. New?
A quick recap:
Check out Deja-vu: 306 S. New St. (1) and 306 S. New St: deciding under less than ideal circumstances (3)
Plans for developing a 7-story building at 3rd and New began in 2013. The height was always an issue. In 2016 the Historical Conservation Commission (HCC) and City Council finally approved a 6-floor building at 306 S. New St. with a 12’ terrace on the north side top floor to achieve a tapering effect, softening the feeling of height. The exterior of the building was completed with the 12’ terrace. That stipulation never got to the tenant of the 6th floor, who designed a restaurant in late 2017 or early 2018 that included modifying the completed exterior of the building for an extension of the interior dining area onto the terrace, the plans for which were then mistakenly approved by the city. It was not until late October 2018 when the expansion work was ½ done and the planned New Year’s Eve restaurant opening hovering on the horizon that the mistake was discovered. Construction was halted, and the area secured against the weather. On November 20, the HCC stood by its ruling 8-0, denying the permission to expand that was already then ½ done. On December 4, City Council overruled the HCC 5-2, the expansion work was completed, the restaurant had a soft opening December 20, and opened on schedule.
When Gadfly last posted on this gnarled case, he said:
Let’s do a thought experiment next.
What would it look like if the vote was reversed?
What if the Council sided with the HCC?
For the helluva it, let’s try to think that through.
So here goes. “Play” along.
- HCC votes 8-0 to deny the Certificate of Appropriateness for completion of the dining room expansion contrary to the original COA
- City Council votes (let’s say) 4-3 to sustain that denial
Where does the scenario go from here?
- The ½ completed expanded part (approx. 47’ x 12’) needs to be torn down and that area restored to its original condition
- Somebody needs to pay: either the city (who made the permitting mistake), or the builder (who should have known about the stipulation), or the restaurateur
- Nobody wants to pay
- Since the city made the operative mistake, let’s say the city has to pay
- Even if the city agrees to pay, the proposed opening of the restaurant would surely be postponed, causing the restaurateur (who may be an innocent victim of circumstance) to lose momentum and revenue
- The restaurateur will sue the city immediately as an innocent victim, arguing substantial loss of customer capacity from the original design (lost space) and irreparable harm from loss of timing — and therefore arguing to continue construction
- It is not likely that the suit could be settled in the restaurateur’s favor and in time enough not to destroy his business schedule, so he would eventually sue for substantial damages
- The decision would generate enormous negative reaction and bad press and even ridicule for the city
- Some people would feel that a victory for historical district guidelines and the important work of HCC commission members had been achieved and was worth the ensuing legal, financial, and reputational mess
Many people were more than unhappy at the 306 S. New St. resolution, especially after the wrestling bout with 2 W. Market that same night.
But in Gadfly’s thought experiment there really was no even remotely satisfactory option.
You might argue with the reasoning behind some of the affirmative votes to overrule the HCC, but Gadfly cannot see the issue practically concluding in any other way than denial of HCC.
Siding with HCC would have been a Pyrrhic victory.
Does anybody’s thought experiment generate a different scenario? One with a better outcome?
So what’s important for Gadfly is that steps are taken to insure that the city mistake doesn’t happen again. That’s why you can see Gadfly in public comment at the beginning of last week’s meeting (Jan. 2 Council video, min. 10:25) asking for a report from the city (not just verbal assurance) on the review of permit procedures and steps taken to obviate repetition of the error.
But there is still something bothering Gadfly about this whole set of circumstances. He can’t quite put his wing on it. But you might see him post about it again.