Commission approves changes at North U.S. 183 shopping center: adds commercial uses and ends public restrictive covenant with buffer requirement transferred to

The commission voted to modify the allowed-uses list and terminate a 2010 public restrictive covenant at the Pysewood Center commercial property at 13642 N. U.S. Highway 183 Service Road. Staff recommended and the commission approved reinstating several uses in the front tract (GR-CO) and the office tract (GO-CO), including indoor sports and recreation, indoor entertainment, private primary and secondary educational facilities and restaurant general for the tract facing the service road. The commission also approved, concurrently, the applicant’s request to terminate a public restrictive covenant that limited operational hours to 7 a.m.–10 p.m. and required landscape buffers, while transferring the landscape buffer requirement into the property’s conditional overlay.

Staff said the city no longer recommends using public restrictive covenants to limit hours of operation because such covenants are difficult to enforce and the provisions may conflict with federal fair-housing determinations for certain civic uses; staff suggested moving enforceable zoning-related restrictions into the conditional overlay instead. The law department advised that prohibiting certain residential-supportive uses (group homes, residential treatment and guidance services) in a public covenant may violate legal protections; staff’s recommendation reflected that advice.

The property owner’s representative, Tisha Bridal, said the center has had difficulty attracting tenants under the older restrictions and asked that several uses be returned to the permitted list so the shopping center can be marketable. Bridal said the owner had no intent to lease noisy, 24-hour uses and stated the owner was agreeable to translating the required landscape buffer into the conditional overlay. Neighbors, led by Cindy Barron, opposed removal of the public restrictive covenant’s hours limitation and said the owner had not adequately maintained landscaping promised in earlier approvals; neighbors also asked for a traffic study should more intense uses be allowed.

In rebuttal the applicant agreed to transfer the landscaping-buffer requirement into the conditional overlay; the commission noted that hours-of-operation restrictions in a public restrictive covenant are generally unenforceable by the city and typically not included in a conditional overlay. Commissioners discussed whether certain uses (for example, a cocktail-oriented “restaurant general”) were likely or appropriate; staff noted that the uses proposed by the applicant would be limited to the tract facing the service road rather than the tract adjacent to the neighborhood.

A motion to approve staff’s recommendation for the rezoning change and to terminate the public restrictive covenant passed with six yes votes and two abstentions. The commission added language into the conditional overlay to preserve the landscape buffer (moved from the covenant into the CO); hours-of-operation were not retained as an enforceable municipal condition.