BZA denies use variance for future Dairy Queen

MARTINSVILLE — The future Martinsville Dairy Queen location hit a snag Tuesday night after the city’s Board of Zoning Appeals (BZA) denied a land use variance for the business.

Request history

The former Dairy Queen location in Martinsville closed about one year ago due to the I-69 Finish Line project.

In February, the Schwab Family Associates — represented by Ross Drapalik from Drapalik Survey and Engineering — came before the board to request that the restaurant’s lowest finished floor be built at just one foot above the base floor elevation.

The owner of the restaurant is planning on building the new Dairy Queen at 1810 Ohio Street.

According to the current city zoning codes, the structure would have to be built at two feet above the base flood elevation.

The current base flood elevation for the parcel of land is 603.5 feet above sea level, so under city ordinance the Dairy Queen would have to be built at 605.5 feet.

At the February meeting, Drapalik noted that the developers had been looking at the site for about six months.

He said that one reason the developers wanted to build at just one foot above base flood elevation was to make the Dairy Queen be at the same level as the neighboring Burger King restaurant.

Officials from the city, including interim planning and engineering director Gary Oakes who said that he was worried that if the BZA approved the variance, believes approval of the variance would set a precedent for future development.

During that meeting in February, members of the board took two votes on the variance request.

One vote was on a motion made by Tom Hacker to deny the request, which was seconded by Katy Barnard and the vote ended tied 2-2.

Subsequently, BZA member Marilyn Siderewicz made a motion to approve a variance for one and a half feet above the base flood level, which was seconded by Anna Elliott.

That motion also ended in a tied vote 2-2.

Board member Ann Marvel was not present at the meeting.

Because the motions both ended tied, Schwab Family Associates was given a second opportunity to present its case before the BZA on Tuesday night.

Tuesday’s meeting

All members of the BZA were in attendance during Tuesday’s meeting.

Marvel and Hacker were both at city hall — while Siderewicz, Elliott and Barnard were all present virtually due to the ongoing COVID-19 pandemic.

One thing that Marvel is concerned about is the explanation of the hardship the current zoning ordinance has on the developers.

“You have to prove a hardship,” Marvel said.

She added that in the minutes from the February meeting that Drapalik noted that the developers were planning on constructing the Dairy Queen regardless of the BZA approving its variance.

Marvel also expressed concerns that the BZA approving the variance could be setting a bad precedent.

Later in the meeting, Drapalik explained what he believes is a hardship and the precedent that some in the city have expressed concern about.

“The hardship was, is when they purchased the property (there was) no flood plains,” Drapalik said.

According to Drapalik, the Schwab Family Associates have owned the property since the 1970s.

Drapalik said that the Dairy Queen being built at just one foot above the flood elevation will not add any extra water in the area.

He also believes the BZA would not be setting a precedent because “each case is taken independently.”

“If that is the case, then the first time the board of zoning appeals allowed for a house to develop closer then the front-yard set back, that would meant that no other person would have to apply to the board of zoning appeals to ask for a variance for a front-yard set back,” Drapalik said.

By the end of the meeting, though, the board voted to deny the variance request 3-2 with Marvel, Hacker and Barnard voting against the request and Elliott and Siderewicz voting in favor.

The next meeting of the Martinsville Board of Zoning Appeals is scheduled for 6 p.m. on Tuesday, May 26, in Martinsville City Hall, 59 S. Jefferson St.

~ Staff Report | Published April 29, 2020 in The Reporter Times