Northwood News ♦ April 2002

KFC Seeks Exception to Its ‘Adverse Effects’

Drive-through restaurants are not permitted in C-4 zones unless the Board of Appeals grants a special exception.  To get a special exception, KFC/Pizza Hut must convince the Board — on at least 10 different points — that “inherent and non-inherent adverse affects” of a drive-through restaurant will not injure or be a nuisance to nearby properties and the general neighborhood.  And they must show that the county needs one, due to an insufficient number of drive-throughs nearby, and that it will not cause a saturation of such uses in the same general neighborhood.

Inherent adverse effects are “the physical and operational characteristics necessarily associated with the particular use....”  Such effects might include:  the fast-food business model, delivery of food and supplies in large trucks, customer traffic, trash storage and removal, noise and odors, lighting and signage, etc.

• Inherent adverse effects alone are not a sufficient basis for denial of a special exception.
• Non-inherent adverse effects are “the physical and operational characteristics not necessarily associated with the particular use, or adverse effects created by unusual characteristics of the site.”  Such effects might include:  the small lot size and its corner position; its proximity to residences, a church, and a high school; an existing parking shortage currently allowed by an earlier special exception; and incompatibility with the historic Art-Deco architecture of Woodmoor Shopping Center.
• Non-inherent adverse effects, alone or in conjunction with inherent adverse effects, are a sufficient basis to deny a special exception.
• Interestingly, the zoning code also states that, even if a proposed use is compliant with this section, it “does not create a presumption that the use is compatible with nearby properties and, in itself, is not sufficient to require a special exception to be granted.”

Under zoning section 59-G-1.21, General Conditions (a), KFC/Pizza Hut must show that the proposed use is:

1. a permissible special exception in C-4 (it is);
2. complies with the standards and requirements in 59-G-2.16 specific to a drive-through (see below);
3. consistent with the physical development of the district and its adopted and approved master plan;
4. in harmony with the general character of the neighborhood, i.e., population density, design, scale, and bulk of new structures, intensity and character of activity, traffic and parking conditions and number of similar uses;
5. not detrimental to the use, peaceful enjoyment, economic value of surrounding properties and the general neighborhood;
6. not a cause of objectionable noise, vibrations, fumes, odors, dust, illumination, glare at the site;
7. not, when considered in conjunction with existing and approved special exceptions in any neighboring one-family residential area [such as the special exception in place for the Woodmoor Center’s back parking lot], a cause of increased number, intensity, or scope of special exception uses sufficient to affect the area adversely or alter the predominantly residential nature of the area;
8. not an adverse effect to the health, safety, security, morals, or general welfare of residents, visitors, or workers in the area;
9. served by adequate public services and facilities including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage; and
10. in regard to findings related to public roads, the Board must determine that the proposed use will have no detrimental effect on the safety of vehicular or pedestrian traffic.

KFC/Pizza Hut, in addition to showing that the proposed drive-through meets all the above specific standards and requirements, must meet those under the special exception part specific to drive-through restaurants, section 59-G-2.16.  This section has seven subsections, several of which repeat requirements from elsewhere (noise, odor, lighting glare, screening from adjacent residences, etc.).  But its sub-part (b) is worth quoting in this case: