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Design code: Red brick, yes. Brick red paint, no.
By Jason Lesley
Frank’s Restaurant couldn’t buy this kind of publicity.
“We love Frank’s,” said Amy Brandon, a member of the Georgetown County Board of Zoning Appeals, during a request for a variance after the restaurant’s owners painted their building a red brick color in violation of paint standards allowed in the Waccamaw Neck Commercial Overlay Zone.
And the remaining six members of the board agreed with Brandon, twisting the overlay zone’s color rules into a pretzel to justify the variance after an hour lamenting the fact that the restaurant owners had unknowingly violated the code.
It was the first time the Board of Zoning Appeals had heard such a case. Previously variance requests would have gone to the Waccamaw Neck Commercial Overlay Zone Architecture Review Board. County Council disbanded that board last year on grounds that a roof variance for a Publix grocery store at Pawleys Plaza failed to meet legal criteria.
“The only place where colors are regulated is in the Waccamaw Neck Commercial Overlay Zone. Since we no longer have an ARB for straight commercial zoning, you have the privilege of hearing this request,” county planning director Boyd Johnson told zoning appeals board members.
Zoning administrator Joanne Ochal said paint colors in the overlay zone must match those approved by Georgetown County Council in 2001.
Frank’s owners Salters and Woofie McClary painted the building’s original red bricks, blocks and siding a cream color after converting Marlow’s Store to a restaurant 26 years ago, before the overlay zone’s color palate was created. Woofie McClary said they wanted to return the building to its original color as a tribute to Frank Marlow. Salters McClary worked for him as a bag boy and rented the building to start his restaurant when the grocer retired. They still rent it from Marlow’s widow. Woofie McClary said she and her husband were wrapped up in running the restaurant and didn’t notice the wood rotting and paint chipping off the front of the building. They called contractor Terry Guyton and Plantation Painting to do the work. “This is not the same old seaside resort we knew,” Woofie McClary said. “Why not go back to the original paint color, try to match the color of the two chimneys that were never painted?” She said they were trying to recover some of the feel of the 1930s and ’40s when Marlow’s Store was a landmark. “It never crossed my mind that I would have to get approval for a paint color for a building we operated out of for 26 years,” she said. “We wanted to take it back to the original color to try and get back a little bit of charm.”
Jeweler John Henry Whitmire said painting the building brick red was a fantastic idea.
“I thought it was a wonderful step on their behalf to take it back to the historic color,” he told the board. “I didn’t know you had to ask for a color change.”
Tom Tiller, a resident of Hagley, said he was perturbed about the need for a paint color hearing. “This is over the top,” he said. “We don’t have an operating ARB, don’t have any publication that says you need a permit to change colors.”
Any color brick — it must have a contrasting mortar — meets the standard in the overlay zone, Ochal said. Red brick paint does not.
“Red brick is a permitted material,” said board member Thomas Onions. “The color of that red brick should be permitted. It becomes an accepted part of the color palate. If you can put a red brick building up beside a pink brick building, the issue becomes so ambiguous it cries for a need to amend the color palate or add a natural brick color to the palate. You may have a brick building or one that was brick at one time, but sandblasting would damage the mortar. You may have no alternative but to paint. To say you can’t paint it red brick when a building next to it can be brick, we have a serious issue. We need to deal with problems the best we can and find a resolution.”
Chairman Johnny Weaver said that was not this board’s job.
“We are not regulating brick,” Ochal said. “We are regulating paint.”
Onions said the rules allow a builder to use “crazy brick” and still comply with the code. “To say you can’t paint a building brick red, we’ve got an issue. We can deal with it now, or it will come back again and again.”
Johnson said the county Planning Commission would have to take up any changes to the color palate and make a recommendation to County Council. “For this case,” he said, “we’ve got to use the ordinance we have today.”
Franklin Daniels of the Nexsen Pruet law firm outlined for board members how the McClary’s request met the four criteria for a variance. One: Are there extraordinary or exceptional conditions? “We believe those factors are met by the age of the building,” Daniels said. “Natural brick is an approved color. Our brick happens to be painted a brick color. Sandblasting is not good for the integrity of the brick and would be cost-prohibitive.” Two: Does it apply to other property in the vicinity? “There are very few buildings with this historical significance,” he said. “Denying this variance imposes conditions on this building that do not apply to others.” Three: Does it prohibit or unreasonably restrict the use of the building? “There are hardly any other buildings built in the ’20s or ’30s that still exist,” Daniels said. “We could use this as an example. You can have a natural brick color, but you can’t paint it a brick color.” Four: Authorization of the variance will not be a substantial detriment to adjacent properties. “We understand granting a variance creates problems,” he said. “This is narrow. It wouldn’t open a Pandora’s box and might let you clarify brick colors.”
Daniels said terra cotta was an approved color in the text of the ordinance. The restaurant’s paint is within the terra cotta family.
Board members couldn’t find a terra cotta color on a chart of permissible wall colors in the overlay zone. That’s because it’s an approved color for a roof.
Board member Eugene Gilfillin said he liked the brick color. “Attractive,” he said. “Technically a violation, but it’s attractive.”
County attorney Wes Bryant told board members they have no latitude to interpret the law despite Daniels’ “decent argument” regarding the terra cotta color. “We can certainly go back to County Council and address the brick issue,” he said. “It’s valid. We’re going to do that. Have confidence in that.”
He told board members the McClarys could request an amendment to the overlay zone’s color palate. “That’s probably a better route to go,” he said. He said the request for the variance did not meet all four criteria. The restaurant is not unreasonably restricted from operating by virtue of the color.
“This gives me heartache,” Bryant said. “I realize it’s not exactly on point, but it’s all we have. That’s the county’s position. We’re going to figure this out. It’s unfortunate that Frank’s is the guinea pig for this situation. We’re here, and these are the rules today.”
Board member David Greene said he wanted to grant the variance even though it fails to meet all the criteria. Onions suggested a compromise. “I don’t see how we could actually give them a variance,” he said, “given the ambiguity. Can we grant it contingent upon amending the color palate?”
Bryant said board approval could be conditional. “It would solve it,” he said, “if County Council is on the same page.”
Sensing the board members wavering, Daniels pressed them to make a decision. “Don’t pass the buck,” he said. “A variance, by its nature, will be something different. This puts us in an uncomfortable position. If we wanted purple that would be different.”
Brandon quoted a Southern Living magazine article praising Frank’s in an attempt to justify the variance. Finally, all the board members capitulated. The vote to allow the red brick wall was 7-0.