The Planning Commission on Tuesday failed to approve a conditional use permit allowing outdoor entertainment at an East Pinner Street business.

Derl’z, recently purchased by Donna Perry, is the former Madigan’s restaurant, which Perry’s brother owned for more than 20 years before selling it earlier this year. The new owner had it for only four months before selling to Perry. Her brother still owns the land.

Perry said she wanted to be able to have live music or disc jockeys in the outdoor seating area on special occasions, such as during fundraisers.

“It wouldn’t be a frequent thing,” she told commissioners during their Tuesday meeting.

Perry lives less than a block away and said she has never heard the music in her own yard on previous occasions when the business has held live music events.

“We’ve never had a complaint from a neighbor,” she said, adding she has lived in Kingsboro since 1968 and helped revitalize the civic league there. “I care about my neighborhood and would never do anything to have a negative impact.”

Commissioners had concerns about the effect of the noise on the neighborhood across the street. The closest house is about 350 feet away, according to a staff report.

“I can’t see us giving the property this open-door policy at this point,” commissioner Arthur Singleton said.

Ronnie Rountree agreed, noting that a less responsible owner who may hold the property later on would not be so considerate of his or her neighbors.

“I’m going to have to vote against this,” Rountree said.

Commissioner Jim Vacalis made a motion to approve the request with conditions dictating the hours of operation and stating that the noise level cannot exceed that in the city noise ordinance. If the conditions were violated, the city could revoke the permit.

But City Attorney Helivi Holland found a legal issue with that.
“They always have to comply with the law,” she noted, adding that proving the noise ordinance was violated for purposes of revoking the permit would be problematic.

Vacalis eventually restated his motion, which was seconded by commissioner John Rector.

“I don’t think the noise is going to be all that big of an issue,” Rector said.

Vacalis, Rector and Mills Staylor were the three to vote for the motion to be approved.

In other business, the commission unanimously approved the following:

• A rezoning along Mulberry Street and Madison Avenue to allow for the expansion of the Birdsong Corp. offices.
• A conditional use permit for a ballroom dance studio at 6550 Hampton Roads Parkway, Suite 106.
• A conditional use permit for an in-home daycare for six to 12 children at 2035 Regency Drive.
• And a comprehensive plan amendment and ordinance text amendment to accommodate more commercial development in The Fairgrounds project.