Avon zoning board continues Dutch Brothers petitions after unresolved access-drive requirement with Lowe’s

The Avon Board of Zoning Appeals on a 4-0 vote on Monday continued two petitions for a Dutch Brothers Coffee outlot at 7893 East U.S. Highway 36 after town staff said an outstanding access-drive requirement tied to the larger Lowe’s property has not been resolved.

Staff told the board the petitions — SE2405 (special exception) and VAR2407 (variance) — have been on the board’s docket since December and previously were continued four times. The continuance, moved by Catherine Ransberg and seconded by Anne Inman, sends the items to the board’s Sept. 16 hearing and requires the petitioner to re-notice the hearing. The vote was recorded as Inman: yes; Ransberg: yes; Taschler: yes; Turner: yes.

The petitions would allow an outlot development for Dutch Brothers Coffee on property owned by Lowe’s. Town planning staff said Lowe’s never constructed an access drive to Vista Parkway that had been required by the store’s development plan approval roughly 20 years ago. That missing connection is a condition staff wants resolved before approving additional development on the outlot parcel.

"We would support at least one last continuance of this to hopefully give them time to put together a proposal that would satisfy our desire to get this requirement for an access drive between the Lowe's property and Vista Parkway settled before any further development would be approved on the property," a town planning staff member told the board.

Staff said the petitioner, identified in reports as Pavilion Development Company and seeking to build the Dutch Brothers outlet, has been working with Lowe’s but progress has been slow. Lowe’s representatives participated in at least one staff call; according to staff, Lowe’s initially said it was unaware of the outstanding requirement and later expressed concern that a connection could create a cut-through for traffic across its site.

Board discussion recounted a similar episode in 2006, when Lowe’s sought to amend its development plan to allow an outlot and proposed an easement through an adjacent property (then Church Brothers Collision, now Caliber). That amendment was later voided after required easement arrangements were not secured within a town-imposed timeframe.

Avon staff and legal counsel discussed enforcement options during the meeting. Staff said formal enforcement of a development plan requirement would proceed through the Planning Commission rather than the Board of Zoning Appeals, and staff indicated a preference to resolve the matter by agreement between the property owner and the petitioner rather than by immediate legal enforcement.

The board approved the single continuance motion with the condition that the petitioner provide updated notice for the September hearing. Staff also said it would be forceful in communicating the town’s expectations to both the petitioner and Lowe’s and noted that consequences could include withholding approval of the outlot if the access issue is not resolved.

There were no public comments during the meeting. Staff announced that because no cases were scheduled for July 15 the board likely would not meet then; the board may have business in August.

The petitions and the town’s files show the property address as 7893 East U.S. Highway 36. Specific terms of any agreement between Pavilion Development Company (Dutch Brothers) and Lowe’s, and any communications from Lowe’s legal counsel, were not provided in the hearing record and therefore are not reported here.