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Food Fight

A south Denver neighborhood takes a stand against a Hamburger Stand.

Beef. It's what the West University neighborhood doesn't want for dinner right next to their homes in the now-empty lot at the corner of South Franklin Street and Evans Avenue. The space, which had been a gas station for 44 years, was leased in the fall by the Galardi Company, which plans to put in a Hamburger Stand that neighbors say will cause traffic and noise problems, significantly affecting their quality of life.

To keep that from happening, residents, led by Eileen Abbattista and Kyle Chism, are suing the city, claiming the lot can no longer legally be used as a commercial space because of zoning changes made in 1964. They're also debating whether to add the developer, Robert L. Naiman LLC, to their suit.

"Our contention is that he had no right to lease that property for commercial use," says Chism, who lives two doors from the South Franklin lot, in a house that has been in his family since 1948. "All along, the city has been wrong in allowing that space to be used commercially."

In 1956, the Continental Oil Company bought the land, which was divided into two parcels, one zoned B-2, for business use, the other R-1, for residential. At the time, zoning regulations stipulated that the entire property could be used in either capacity as long as both were under the same ownership and each space was no more than 6,250 square feet. (Each parcel measures exactly that.)

The code changed in 1964, however, and the maximum square footage allowed per parcel was reduced to 6,000, meaning the gas station was now "non-conforming." But through subsequent sales of the property, the city continued to allow it to be commercially zoned.

Last spring, Silco Oil closed its privately owned Conoco on the site and removed the underground gas tanks, the gas pumps, and the gas pipes. And that, says the neighborhood's attorney, David Carroll, is when the city should have revoked the land's ability to be used commercially. "The code specifically reads that 'abandonment of a non-conforming use shall terminate immediately the right to operate such a use,'" he says. "The bottom line is, that site shouldn't be looking at a Hamburger Stand or, really, any kind of commercial use."

The neighborhood pleaded its case to the Board of Adjustment for Zoning Appeals last November, which voted 3-2 against it. One reason listed by the board was that the neighborhood's objection "appears to be largely based on the specific use proposed, rather than on a belief that any B-2 use of the whole property would be in error."

It's true that, initially, the neighborhood's main beef was the type of business that would go in the space. "Obviously, our first choice would be for a nice house," says Chism. "But when I saw the developer's sign on the property, I thought, 'Okay, maybe we can work with him.'" So Chism contacted Naiman. "We sent him a list of businesses that we'd love to see go in there: a bank, a hair salon, an ice cream parlor or maybe a Kinko's."

But Naiman says none of those types of businesses would bite. "The only one that stepped up to the plate was Hamburger Stand. I would have gone with any type of business that wanted that space."

Once Hamburger Stand seemed to be the inevitable tenant, the neighborhood resigned itself to working with the company to come up with plans that would have the least impact on the area. "The first drawings they sent were horrifying," says Chism, who works as a project engineer for a general contractor. The plans included a drive-through speaker set mere feet from a child's bedroom in the house next door; garbage bins facing the alley; a lack of adequate fencing around the eatery to keep noise down and block the view; an outdoor patio that would add to the noise level; and too few parking spaces, so that customers would have to park on Franklin.

"This is a neighborhood that already has a lot of problems with parking at restaurants, with all of those places along Evans," says city councilwoman Kathleen Mackenzie, who spoke up for the neighborhood at the Board of Adjustment appeal. "In this case, it was a new owner and a new use, and the city obviously dropped the ball on this one."

But Assistant City Attorney Kerry Buckey says that once the decision was made to zone the entire property for business, it was irrevocable. "The city's position is that this is not a non-conforming use, and so it's simple. The developer was very much within his rights to lease that property as a commercial use."

The developer says he relied on the city to inform him of the zoning laws. "We're just guys who bought property and went to the city for the facts," Naiman says. "The city gave us the go-ahead...Could I see living right next door to a Hamburger Stand? Yeah, I can. I think it would be a heck of a lot better than living right next door to a gas station. A gas station produces a tremendous amount more traffic than a fast-food place."

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