NEW GETGO QUESTION: CAN THE PROPOSED GETGO CONVENIENCE STORE LEGALLY SELL PREPACKAGED ALCOHOL TO THE DRIVING PUBLIC?

Highland Heights Ordinance 1131.04(e)(4)(B) prohibits “the sale of intoxicating liquor and beer” in Motor Service Districts.That raises this question:

Doesn’t that apply to developer Lance Osborne’s proposed mega GetGo convenience store?

ALCOHOL SALES AND THE GETGO CONVENIENCE STORE
The Back Story

Council President Cathy Murphy has indicated that Council will put a GetGo-related zoning issue on the November ballot as part of a negotiated development agreement with developer Lance Osborne and Giant Eagle.
That issue, if passed both city-wide and in Ward 4, would rezone the front part of the Catalano’s property as a “Motor Service District” (MSD), which would allow installation of a mega GetGo facility there.

From the start, Osborne planned to construct a convenience store as part of the proposed mega GetGo facility.
Tucked into a corner of the retail store will be a “café” with a food counter and a small seating area. While it provides an additional amenity to GetGo customers, it should go without saying that the small café area doesn’t convert the convenience store into a restaurant or otherwise alter the building’s predominate use as a retail store.

Anyone who has frequented a GetGo convenience store knows that retail alcohol sales----in the form of packaged beer and wine---are an important part of the convenience store’s business. It’s hard to ignore that reality, given the large pyramidal displays of beer and wine that greet you as soon as you walk through the door.

Rezoning the property as a MSD, raises a new issue---one that Mayor Coleman and Council have yet to address:

Doesn't the Highland Heights zoning code ban the proposed GetGo convenience store from selling prepackaged alcohol to the motoring public?

That prohibition could be a real problem for Osborne and the company planning to operate the GetGo facility.

The Highland Heights Zoning Code

Section 1131.04(e) of the Highland Heights zoning code sets out the use restrictions for MSD property.
It begins by listing the “purposes” of the MSD zoning classification and then limits what MSD property can be used for---in order to effectuate those purposes.  One of those “purposes” is:

To protect nearby residential neighborhoods by restricting the types of nearby uses…which would create objectionable influences.”

The zoning ordinance lists 3 permitted “Main Uses” of MSD property: 

1. “Automotive Facilities,” including “service stations….but not for the sale of intoxicating liquor and beer.”
2. “Lodging facilities,” defined as “Motel accommodations for the traveling public” and
3. “Eating and Drinking Establishments,” i.e., “Restaurants, snack bars, taverns, drive-in refreshment stands” (but no drive-through establishments)

You’ll notice, “convenience stores” aren’t listed.
The GetGo convenience store would most likely be allowed as a MSD “accessory” use.  

Section 1131.04(e)(4)(B) states that permitted “accessory uses” include:

“Any use customarily considered incidental to a main use permitted in a Motor Service District but not for the sale of intoxicating liquor and beer…”

There’s the rub.

Highland Heights’ current zoning code expressly prohibits the retail sale of “intoxicating liquor and beer” by gas stations and in connection with MSD accessory uses.

While theoretically individual alcohol drinks could be served to GetGo café customers pursuant to a state restaurant liquor permit---whoopee, let’s drink ‘n drive----the zoning code appears to otherwise explicitly ban the sale of the “intoxicating liquor or beer” in the GetGo MSD.

There is one obvious solution to this dilemma.

Highland Heights residents could vote to amend 1131.04(e) to allow retail alcohol sales in MSD.
That would certainly clear the way for retail alcohol sales at the GetGo convenience store.

Council has time to put such an issue on the November ballot—the Board of Election’s deadline for doing that is August 8th.

Unfortunately, Council hasn’t discussed doing that.

That raises a troubling question:

Will Highland Heights’ officials ignore the zoning code and give developer Lance Osborne and Giant Eagle free rein or will they do what they are legally supposed to do---protect residents and nearby residential neighborhoods by enforcing our zoning code as written?  

Council has until August 8th to answer to that question.

BOUQUETS AND LOLLIPOPS FOR TONY IANIRO

Finance Director Anthony Ianiro’s received many accolades on June 26th---his last council meeting before retirement. Go to my blog to read some of those comments: www.amyferan.com.