The Zoning Board decided Monday, Nov. 14 not to reconsider an earlier decision to rezone the 6-acre River Hill Garden Center property in Clarksville from residential to business.
The board, which is the County Council sitting on zoning matters, approved the zoning change to B-1 (business local) in a 3-2 vote in July. The official decision was issued Oct. 18.
On Monday, the board unanimously voted to dismiss a motion to reconsider, which was filed by David Elsaesser and other residents who live behind the garden center on Whistling Winds Walk.
The board, after obtaining advice from legal counsel, said the motion did not meet any of the criteria under which their rules of procedure allow them to reconsider a case. The board is only authorized to reconsider a case if an instance of fraud, substantial mistake, inadvertence or irregularity is found.
Board member Greg Fox, who had voted against the rezoning in July, explained his reason for voting to dismiss Elsaesser's motion: "While I feel for the residents and obviously I disagree with the initial findings of my colleagues, I don't see anything in the petition that really matches up with anything from a legal perspective that we're supposed to consider."
After the meeting, Elsaesser said he had not planned to fight the Zoning Board's decision but did so because the residents' concerns about the garden center's impact on their neighborhood have only been exacerbated since the decision. He said Stephen and Cathy Klein, the garden center's owners, moved much of their landscaping operations to the back corner of the property, bringing trucks and noise near the Whistling Winds homes starting at 5 a.m.
Ruth Whye, whose has lived on Whistling Winds Walk for 11 years, said she has been awoken by the trucks many times.
"I'm right in the middle of it," she said.
The Kleins had requested the zoning change because they want to add a non-seasonal element to their business — such as a coffee shop or restaurant — that requires business zoning.
When the board voted for the rezoning in July, they urged the Kleins to enter into covenants with the residents regarding the use of the property to appease the residents' concerns about additional noise, lights and offensive smells that changes to the property and business operations could cause.
"We tried to contact (Stephen Klein) for covenants, and he declined," Elsaesser said.
Klein could not immediately be reached for comment.
The new business zoning will take effect Nov. 18, unless Elsaesser or another resident files an appeal in Circuit Court.