Sonic rejection results in lawsuit
Related: Suit
That's how attorneys for Fairmount and Sonic describe Blacksburg Town Council's recent decision not to issue a special use permit for the building of a Sonic drive-in restaurant.
Now they've taken the matter to court.
In a July 9 filing, plaintiffs sued the town in Montgomery County Circuit Court for injunctive relief to overturn the 4-3 decision to disallow the special use permit.
This is the latest in a series of lawsuits related to the First and Main development project between Blacksburg and developer Fairmount University Realty Trust.
The suit alleges that disallowing the permit for Sonic, which was to be located on an outparcel of the main development along South Main Street, while allowing one for a Wendy's across the street that would abut residential areas, shows the town government is seeking "victory against a disfavored developer and landowner" and is engaging in discriminatory conduct.
The property in question is commercially zoned and is in the town's general commercial district. The lot abuts U.S. Highway 460 and is designated for high-impact development. The land on all sides is developed or currently under development for commercial use.
Council member Paul Lancaster said that the property had been specifically set aside for such development.
"If a drive-in restaurant is not appropriate there, it's not appropriate anywhere in Blacksburg," Lancaster said.
Fast food establishments are by right permitted by the Blacksburg zoning code.
Drive-in restaurants, however, must seek a special-use building permit to begin construction.
In a 4-3 vote in June, the Blacksburg town council rejected the Sonic plan, citing concerns over pedestrian access and safety, traffic flow and congestion, and even worries about the level of pollution from idling cars at the drive-in.
Since 2006, the council and Fairmount have been locked in a fight over a 40-acre commercial redevelopment project on South Main Street. The most contentious part of the project is a big-box retail store widely thought to be a Wal-Mart Supercenter that Fairmount wants to build along Country Club Drive.
In 2007, Fairmount won a case in Montgomery County Circuit Court over ordinance 1450, which the council passed after Fairmount submitted site plans for the 186,000-square-foot, big-box store. The ordinance requires a special-use permit for any retail building larger than 80,000 square feet.
The town has spent $147,000 on legal fees fighting the big-box store, including a pending request for an appeal to the Virginia Supreme Court.
The Planning Commission considered the possibility of 24-hour traffic, limiting the permit to a 6 a.m. to midnight operation, restricting trash pickup to daylight hours and "Sonic Radio" broadcasts under the outdoor dining canopy from 10 a.m. to 10 p.m.
Councilwoman Mary Holliman said that she had not seen sufficient mitigation of public concerns about noise and congestion.
"We have an integrated plan, and part of that plan is to make pedestrian- and bicycle-friendly developments," Holliman said before her vote against the permit.
"While a lot has been done to address these concerns, it just isn't enough," Holliman said.
Zoning administrator Andrew Warren said the proposed Sonic Drive-In is consistent with the town's comprehensive plan and met development standards for the general commercial district.
The suit alleges that despite the recommendations of the zoning administrator and a 7-1 vote for approval by the zoning board, Blacksburg Town Council used irrelevant concerns about noise and fumes to block a business that had no part in the earlier conflict.
"The main difference between Sonic and Wendy's is one of association, not relative merit," the suit states, "Sonic is an out-parcel of First and Main, a development caught up in a local controversy regarding inclusion of a large retail anchor in the project."
Fairmount and Sonic allege that they had made many good-faith efforts to meet the town's demands for new developments including additional signage for pedestrians, idling cars, the colors of the car canopy and roof of the proposed building, limiting trash pickup and operating hours and several measures regarding the external speakers required to operate the business.
Of primary concern to the Planning Commission, Town Council and residents were outdoor speakers, with over 30 speakers projected to be at the site.
"My speakers are not loudspeakers. I decided to move our music speakers to the patio, which brought me a lot of heat from Sonic corporate, but I felt it was best to address the Planning Committee's concerns," Sonic representative Andrew Marset said before the June 11 vote regarding concerns about noise pollution.
The complaint alleges these measures were ignored and amount to an effort to punish Fairmount for their previous legal victory.
Phase one of the First & Main project, including various retail stores and restaurants, is under construction and is scheduled to open in the fall. The Sonic was to have been part of phase one.
On Aug. 5, the town's planning commission is scheduled to hear public comments on another special-use permit for phase one, this one for an Arby's restaurant at 1450 South Main St.
