Hilliard City Council is expected to decide Jan. 28 whether to approve the rezoning necessary for a Swensons Drive-In to open at 4810 Cemetery Road, adjacent to J.W. Reason Elementary School.

The application for the drive-in style restaurant was the subject of a second reading and public hearing Jan. 14.

However, unlike at least one case in past years, only four affirmative votes – a 4-3 majority – would be required to overturn the nonbinding recommendation issued Aug. 9 by the Hilliard Planning and Zoning Commission to reject the rezoning application for a planned-unit development, law director Tracy Bradford told council members.

In April 2016, the planning and zoning commission issued a negative recommendation for a planned-unit-development proposal for Point Blank Range and Gun Shop to open at the former Jed's Fireballs and Brew, 3799 Park Mill Run Drive.

A month later, City Council voted 4-3 in favor of the proposal, but at the time it was believed five votes constituting a supermajority were required and the PUD application remained defeated, Bradford said.

In researching the city code, she said, city officials discovered that language for the requirement of a council supermajority to act contrary to the recommendation of the planning and zoning commission was absent concerning a planned-unit development.

The applicant had a window to appeal the decision, but it has passed, Bradford said.

Council President Albert Iosue and council member Les Carrier both said they thought five votes were necessary until receiving an email from the administration late last week. Carrier on Jan. 15 called the 2016 decision "an embarrassment."

The new information means only four votes would be required to overturn the Swensons recommendation, even though legislation was introduced to align policy for the number of votes necessary for City Council to overturn planning and zoning commission recommendations, making it a supermajority for planned-unit developments.

However, that legislation was postponed to Feb. 11.

Carrier said he would rather reduce the number of required council votes to four for other decisions rather than to raise planned-unit development decisions to five, but that would require an amendment City Council has not yet considered.

Meanwhile, City Council amended the development text for Swensons and on Jan. 28 is scheduled to consider an application slightly different from the version the planning and zoning commission rejected in August. City Council voted 5-1 to approve the amended proposal. Councilman Nathan Painter voted against it and Vice President Kelly McGivern was absent.

"I don't have a problem with Swensons coming to Hilliard; it just needs to be in a different location," Painter said.

The amendments to the development plan include an increase in landscape buffering along Cemetery Road; an increase in front-parking setback from 20 feet to 38 feet and the elimination of nine parking spaces from Cemetery Road; a reduction of total parking spaces from 92 to 80; and a commitment that signs and graphics would be filed as a separate comprehensive application for review by the planning and zoning commission if the property is rezoned from a B-3 business district for offices and similar uses to a planned-unit development.

Otherwise, city planner John Talentino said the sign-and-graphics package would be considered approved as part of the rezoning and as submitted, the roof signs and other elements are contrary to the city code.

The application also is contrary to the city's comprehensive plan, he said, which recommends professional office uses for the site.

Talentino reiterated traffic concerns associated with the site, including customers using the center turn lane to access the Swensons parking lot on the north side of Cemetery Road, which could block drivers needing access to residential driveways on the south side of Cemetery Road. He also noted the possibility vehicles could back onto westbound Cemetery Road from the parking lot.

Jay Muether, a member of the planning and zoning commission, told council members Jan. 14 the commission rejected the application in August "because it didn't fit the use."

"As a group, we didn't think (the proposed use) was appropriate."

The developers of the proposed Swensons, whose signature burger is the Galley Boy, are Jamie Moore of Dublin-based Crawford Hoying and Tim Reardon, a managing partner of New Start Development, who together founded a limited-liability company for the project.

It would have no indoor or outdoor seating and would not have a drive-thru, Reardon said. Orders would be delivered to vehicles to be consumed there or taken to go.

Currently zoned B-3, the site allows for a restaurant but a change to a planned-unit development is required for a drive-thru or drive-in restaurant, Talentino said.

"Our code just doesn't consider (a drive-in restaurant)," Talentino said.

Tom Hart, an attorney representing the developers, said planned-unit developments are meant to address such situations and the application is not a tactic to skirt zoning laws.

Ron Dee, vice president of sales for Swensons, told council members Swensons' concept of eating in vehicles is viewed as "quirky" to young adults and as nostalgic by the generation that recalls drive-in restaurants and sock hops.

"We appeal to a very broad demographic," he said.

Founded in 1934 in northeast Ohio, Swensons' first central Ohio location officially opened Nov. 9 on Sawmill Road in Columbus, just north of Hard Road, and a second location is scheduled to open soon near Polaris Fashion Place in northeast Columbus.