Developer Ross Fefercorn may sue the city over which tenants he can have in his new Uptown Row development at 1221 W. Lake St. in the CARAG neighborhood.
The dispute centers on a city rule that restricts tenants based on the estimated parking those businesses generate.
The city approved Uptown Row plans that would allow 167 spaces of demand, but Fefercorn later eliminated nearly 16,000 square feet of basement space, reducing allowable demand to 114 spaces.
Fefercorn said the city approved his basementless plan more than a year ago, so he should get 167 spaces of demand, and he has appealed to the City Council.
The Board of Adjustment and the City Council's Zoning and Planning Committee denied Fefercorn's appeal, but the full council delayed action June 18 after the City Attorney said the legal issues merited further evaluation.
Fefercorn would consider a lawsuit if the City Council rejects his appeal, his attorney, John Herman, said.
Uptown Row is already home to Wild Noodles Restaurant, Planet Beach Tanning Salon and Keep in Touch Massage. The residential development, Emerson Row Townhomes, is yet to be built. They both sit on the site of a former police garage.
Despite the disputed parking demand, the city granted Federcorn an undisputed variance to build only 68 spaces. Some Uptown Row neighbors, such as Justice Gibson, support the decision to limit high-traffic tenants.
"We are here to protect our neighborhood from what was initially portrayed as a family- and health-oriented low intensity development and is now clearly shifted toward higher intensity utilization," Gibson said at a recent Board of Adjustment hearing.
Neighbor Phil Qualy has hired a lawyer to help him oppose Fefercorn's efforts to add high-traffic uses.
Herman said the city had the right to change the conditions before it issued the building permits -- not after. "Once these permits were issued and the plans stamped, the decision was made," Herman said.
City Zoning official Blake Graham said the issue did not come to his attention until after city staff issued permits. The record "is not the best," he said.
Still, "the fact that the city issues a building permit that may have been issued in error does not prevent the city from going back and correcting the error," he said.
Added Graham, "If you have been provided parking demand for building space that you later do not build, why should you be entitled to the parking demand?"
One of the issues that could get aired in court would be whether Fefercorn changed his plans in good faith and informed the appropriate city officials.
"Until we go to a lawsuit and start to depose people, who will know for sure?" Graham said.
Herman said his client "was totally above board. He was blind-sided by this as a problem."