Waffle House appeals Biloxi Council zoning denial [The Sun Herald]

Oct. 30--BILOXI -- Waffle House has appealed the City Council's denial of the company's request to rezone property at the corner of First and Myrtle streets in East Biloxi for a new restaurant.

Biloxi attorney Robert Schwartz filed the appeal late Monday in Harrison County Circuit Court on behalf of Waffle House and Aureus Investment Group.

The appeal calls the council's Oct. 22 vote "arbitrary and capricious," and said the council denied the applicants their property rights.

Waffle House wants to build a restaurant midway between Golden Nugget Casino and Palace Casino. Attorneys for the casinos objected to the rezoning at both the Planning Commission and City Council meetings and said the casinos have major development plans for the area.

The Planning Commission voted 11-1 to recommend the property be rezoned because of the change in the character of the neighborhood.

The City Council voted 5-2 to deny the zoning request because there is no change in the character of the neighborhood.

The circuit judge will

decide the fate of Waffle House unless one of the Biloxi council members who voted against the rezoning brings it up for discussion, which could result in a reversal of the council's decision.

Conflict of interest?

Councilman George Lawrence, who owns property across the street from the Waffle House site, voted against the change. According to the city's Land Development Ordinance, members of the Planning Commission, the Zoning Board of Adjustments and the Architectural and Historical Review Commission must recuse themselves and leave the room during a discussion or vote if they own land within 300 feet of the property. The LDO doesn't specify if that also applies to council members.

Schwartz filed the appeal within the required 10 days, but asked for additional time to file a bill of exceptions because the minutes of the council meeting weren't yet available. The bill of exceptions states the facts of the case and the objections Waffle House has to the ruling.

Pre-Katrina or post-Katrina?

Waffle House asked the city to rezone the half-acre lot at 115 Myrtle St. from RS-5, high-density single-family residential, to NB, neighborhood business. Schwartz said no homes have been rebuilt on the block since Hurricane Katrina eight years ago and the property is unsuitable for residential because it's too expensive and too low-lying.

The attorneys for the casinos said the council should look back only to 2010, when the latest Land Development Ordinance was adopted, to determine if the neighborhood has changed. They said the neighborhood hasn't changed, although the casinos are expanding and the Biloxi Maritime & Seafood Museum is being rebuilt, because they were there before 2010 while the Waffle House would be new.

The Biggert-Waters Flood Insurance Reform Act of 2012 could be a factor in whether the neighborhood is considered to have changed.

Residential barriers

Ed Shambra, executive planner for Biloxi, said during the Planning Commission meeting there are strong barriers to residential development in that area.

The vision for Point Cadet is detailed in the city's Comprehensive Plan and in the Living Cities and Reviving the Renaissance plans compiled after Hurricane Katrina.

The Living Cities plan shows all of East Biloxi as a waterfront mixed-use area, "incorporating casino and entertainment facilities, hotels, a diverse range of boating and recreational uses and public waterfront access." It also says the area is "very susceptible due to flooding and is best suited to larger commercial and waterfront facilities that can be designed in ways that will limit future flood damage."

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