The Silver Mine Subs scenario is one I want every Lafayette City Council candidate to comment on. The way in which a candidate perceives the scenario - starting with the extent to which they even investigate the details to their philosophy on the role of government - including the authority city staff and advisory Boards should have - make this a perfect case study to vett those who wish to sit in the leadership role of our town.
Here is the staff memo for the Planing Commission meeting on Wednesday. My impression is that this business is being unfairly restricted in its ability to provide a normal, desired, revenue-generating service to the community by the staff recommendation they must stop delivery at midnight as opposed to the historic 3:00 AM.
There must be noise violation and other code issues that are in place for anyone doing business, and an accumulation of violations would put their business license in jeopardy. However the blanket reduction in their delivery hours based on complaints of how many? residents - WHO KNOWINGLY MOVED IN BEHIND COMMERCIAL DEVELOPMENT - is knee jerk, petty, robotic and an example of all that is wrong with the "small town feel" mentality being touted as a desired value.
I've become increasingly convinced that my neighbors who champion this "small town feel" of Lafayette are living in an idealistic lala land. They want the pastoral, mellow, no traffic, open space, no crime, everyone-knows-each-other-parts, but such essentially rural communities with those characteristics do not have huge libraries, their own police forces of any size, Rec centers, trails all over, etc. There is a disconnect between the amenities people want here and how they can be funded. They want all the nice mellow parts, plus the nice things larger towns have, but none of the attendant activities that pay for such benefits.
I support reasonable expectations of privacy or quiet, etc. I do not support absolutely no sensory experience of a neighbor's operation when their existence is otherwise legal - and desired. How loud can their operations be, really? What am I missing?
I moved in next to a school. In the summers, every morning at 5:45 AM, the sprinklers go off - big ones. If my window is open, it always wakes me up. Some days, it is really, really irritating - as many of you know, I'm not sleeping much with a 3-month old in the house. I cherish every second of sleep. But anyway, it never occurred to me to do anything other than SHUT MY WINDOW for the 20 minutes they run. Its part of LIVING IN A COMMUNITY as opposed to buying a trailer and living on 10 acres away from the rest of civilization because I'm so touchy about the sounds of the real world.
So, any candidates wish to chime in? This is a microcosm of the real-world issues we look for our leaders to articulate where they stand. I hope to hear from a few.
Subscribe to:
Post Comments (Atom)
23 comments:
Having lived next to a pawn shop and across the street from a gas station, I am very sympathetic to zoning conflicts on the residential-commercial boundary. Land uses may be perfectly reasonable on the face of it, but can become objectionable with poor management or intensification over time. To that extent, I don't think the doctrine of coming to the nuisance, as Dan describes, will apply in every case of a complaint along the zone boundary.
That said, I cannot comment specifically on the Silver Mine case until the public hearing on Tuesday night. It will be worth tuning in, if you agree with Dan, as I tend to, that this case speaks to some broader issues in the management of the city.
Correction, the public hearing is Wedsnesday.
Dan,
You paint an interesting scenario. But based on the limited LN article and staff report, there is a major omission. Here is the original citizen complaint. I have only edited the info that would identify the sender. The wording and spelling is that of the sender:
"Dear Mr. Berry; Let me introduce my self . My name is *********** I'm fifth generation hispanic. I've lived at 1225 Apollo dr. for twenty sever years now. In 1980 I attendant a city council meeting in regards to open space to be converted to commercial zone. Furthermore in 1981 city council members approved a stripe mall to be built behind my home on Apollo dr. After further consideration the mall that was built, but would not allow food services. But as the neighborhood changes and new residents move in and the persistence of the owner of the mall kept pushing there inability to establish and anchor of business they have since allowed food service. Now I'm a senior citizen living on a fixed income I have no choice in moving. Lastly in about 2001 Silver mine subs was allowed to set up shop behind my house that set approximately 40 feet or 50 feet from my bed rooms. Well I think I don't have to say much more, but now it's becoming intolerable to live here, especially after S
ilver Mine saw that it would extend its business hours till 4 o"clock in the morning, this occurred two years ago or maybe sooner. With cars running some with loud mufflers some with not, people that are loud some that are not. Cars running at 4 o'clock in the morning and cars that are loud leaving every 30 minutes delivering their products. Also I should mention that delivery trucks come more frequently with more food serves at the mall and at 5 to 6 o'clock in the morning. I never would have thought that a sandwich shop would be delivering at such hours. Thank you for your time in reading this and I hope you would find compassion in your heart to let this senior citizen enjoy his American dream. Sorry I should mention this, when they did approve the strip mall their were conditions that they would have to adhere too such as no business after 10:00 PM and not before 7:00 am Its written some where in the archives that city council members drew up, also their where other stipulation
s."
The sender also sent a second e-mail informing the council that a 911 call was made due to suspicious behavior behind SM in the early hours of 7/6.
So now review your take on the matter and locate all the errors and eroneous assumptions you made. A couple: Is this a "knee jerk, petty, robotic,....? Did this sender "knowingly move behind a commercial development?"
Now what is your take on this situation? Did the LN article do this justice? Is this resident within his/her rights to raise this issue? Think about it.
Kerry:
I was wrong about the "knowingly moved in behind..." To the extent it reduces my rationale, I'll accept that.
Other than that, I see the problems asserted as being addressable under noise ordinances and other regulations. The sweeping nature of wanting to see things remain as low key and residential as they were 25+ years ago is naive.
I have seen in my own family the range of ways elder relatives have reacted to their surroundings. On this continuum is the hell-in-a-handbasket, the world doesn't respect seniors, why-do-things-have-to-change outlook, which somehow presumed a time warp would occur from a certain year and life would be the same from then on. A recipe for bitterness.
Then there are those who recognized an evolving world is the way it would always be, and chose to live somewhere where that evolution would be somewhat contained and insulated - a private community, or those who just roll with the dynamism that is happening around them. Different personalities choosing different ways to live.
I don't know the owner of Silver Mine or have any direct connection to this issue. I'm watching municipal regulatory creation at work. And I don't agree with where I see this issue headed.
If Silver Mine is breaking a given community-wide rule, bust'em. But curtailing their business model based on what was nice in 1981 is a stifling way to design public policy. We should be looking ahead, not back.
Remove the name, but leave the address? Not anonymous anymore.
Why did this take 3 years for the complaint to be made? And, why not go directly to the businessman first? Small, local business-people are receptive to this kind of feedback, if presented in the proper context. The few who blow off complaints won't stay in business. Word of mouth is the best form of advertising for these local businesses, so they won't take the chance of upsetting their marketplace.
A conscientious businessman would make adjustments to his business so he could continue to serve the late night customers, and do so in a quiet manner so as not to upset the neighbors.
And, this is the solution the city should be seeking as well. It serves no purpose for the city to come down with an iron hand unless they're just wanting to show "who's in charge."
I can't comment on the city's approach to this until after the hearing.
But there are several points in the resident's e-mail that evidently require some amplification.
That strip mall has been there for over twenty years. Businesses have come and gone numerous times. That's where the DQ was and I think the SM location had a beauty salon of some sort in it for a while. This resident chose to file a complaint with the strip mall there after twenty plus years. It's not like this person is a troublemaker.
Have you visited the location behind SM? I did. Go take a look. Their delivery car (at least 10 years old) was parked behind the building as that is where the rear exit is. All of the units have a similar exit. Since the neighborhood is quite old, it's possible the home has no air conditioning and the windows are open at night. There is a solid wood fence along the property line. Hence the nightly disturbance must be quite loud. And is the back of the building where employees or others hang out? Did SM ever indicated they would be open until 3 A.M? Note their hours are posted on a piece of paper taped to the door.
The resident contends that the council forbid food services there. Did they? Were there restrictions? If so, SM should have been informed by both the landlord and the city. Someone made a BIG mistake then.
And now you make getting old a liability? Where did that come from? Evidently you contend that those who have lived in town for decades, been responsible citizens, paid their taxes, can't sell or move, and have seen their cost of living go up are not entitled to the city's ordinances being enforced.
Or perhaps PUDs, etc. expire at some time and the city, developers, tenants, and landlords are allowed to do whatever they want and to h*** with the neighborhood. Seems to be a lot of that attitude going around these days. This attitude that neighborhoods are bad, residents are bad, and businesses can do whatever they want if it generates tax revenue. (Hate to tell you this but the city will never have enough sales tax. Put a strip mall or a big box on every corner and it's not going to be enough.)
But the key point is anyone can blog and make unfounded statements and come to some wild conclusions. Also that LN focused their article on SM and not the substance of the resident's complaint, making SM the victim. The e-mail suggests this resident is not some wild eyed, loud mouth, raving lunatic and does deserve the complaint to be addressed. You would expect the same.
Yes, D-B. I posted it and left the address in. My mistake Maybe Dan can edit it out. E-mails like this are public information. Note that the Lafayette News chose not to include some of the content in its article. I wonder if the sender will speak at the hearing.
As for why the complaint now? You would have to ask the sender. Some folks simply don't like the confrontation and involve a third party. Also from reading the text, the sender wasn't sure quite what the city/owner agreement was. Or one night it got simply too disruptive to bear.
As for the business owner, being that close to a residential neighborhood should have been a red flag to proceed with caution. My guess is that the employees and others hang out back there during breaks or after hours.
The city is proposing what you have read. The Planning Commission makes the decision on special use reviews.
Note the sender did not suggest closing the store at 12 midnight in the e-mail.
More point still stays. Accusing the sender of being some loud mouth jerk is out of line.
Used to be a Nick & Willy's Pizza in there and a doughnut shop, as well as the DQ. The food service issue is probably without merit.
No matter the hours of operation, because of the tight quarters behind the building, there has to have been fairly noisy things happening for 20 years. I don't buy all those tenants have been totally quiet for all those years. OK, maybe the christian book store was quiet. Just the act of throwing out the trash at midnight would be loud back there. Very tight quarters.
Why not limit activity in the back of the building during certain hours? Require delivery to be handled out of the front door? Seems it would be safer for the business, as well.
I still believe there are facts missing here. And, it's bothersome that one complaint can cause a public hearing.
I never called anyone a jerk, so don't stretch my words for dramatic effect. I am very careful in what I say and I am arguing the principle and the policy here.
Anyone complaining to city hall instead of directly to the source of their concern, is by my definition being loud - bringing their concern to a much higher and public level than may have been necessary.
My passion is focused on the mechanics set in motion and obviously indulged by staff. A person complains about noise, which leads to analysis of agreements and the range of technicalities that now may lead to a business being curtailed in a way that puts them out of business. Why must the pedulum swing so far in either direction?
This is the scenario being argued, and a resident started this ball rolling. I would like to see the city step in and address the specific problem.
There was certainly no "business can do whatever they want" sentiment in any of my posts. I said repeatedly to fine them, punish the violation, etc. It is the potential to limit a successful business because of the noise of dumping trash that is overreaching.
Perhaps a tempest in a teapot, when I consider the bigger picture. But all politics is local.
So let's go back to what might be the beginning. Under what terms and conditions was the strip mall approved and under what terms was SM allowed to do business?
The city staff argues that SM did not indicate it would operate until 3 a.m. If true, it argues SM is in violation of its special use agreement. Note that what is left out of this is that the city did not know about this for a couple of years. That indicates there was no "policing" of the agreement. (You may be surprised to know that the previous bagel shop next to Java Java operated for 3 years without the city knowing it existed. The owners ran off with the sales tax they collected. So for years I bought bagels at a mirage. I wish the calories had been a mirage too.)
However, I bet our police department knew SM was open until 3 a.m. and probably frequented the shop.
SM did not request a change to its Special Use agreement when it alledgedly changed its operating hours. That would have been the time to agree to conditions of operation. Especially since it abutted a residential neighborhood. Alex can jump in here but I believe that would have resulted in a public hearing at that time and a decision.
So now it is up to the PC to decide.
Now put this in the context of the agreement the city has with the cheese guys for the Coal Creek Shopping Center. The city loaned the cheese guys $2,400,000 to buy the place almost 4 years ago. The cheese guys will be in violation of their contract on September 1 and have consistently reniged on their commitments to the city and their tenants. (Right now Chips is their current "victim".) Yet the city administrator wants to take no action against the Cheese Importers.
So for those of you who wonder why I scratch my head at how city hall runs, this may be a clue.
By the way, it appears that if all the after hours operations were run out the front door istead of the back door, there would be no noise and disruption, assuming if needed, the mufflers get fixed on the delivery car.
The resident(s) were well within their rights to file a complaint.
Doesn't the city require the business license to be posted in public view?
Isn't Lafayette big enough, with enough sales tax revenue to justify a full time sale tax auditor position? Or, is it so big that local officials don't notice when a new business opens and check to see that a business license was obtained and taxes are being paid?
There's really no excuse for a business being able to operate outside of their approval parameters without city knowledge. This is not lax enforcement, it's no enforcement.
After the Bunker's Bagels fiasco, you'd think the city would have learned something.
Now that it's blown up because of a complaint, the blame appears to be falling completely on the business operator. The city was complicit in letting this happen. Will they accept blame and work for a solution that works for the business and the residents?
D-B,
I went to Bunkers Bagel on a Sunday a.m. only to find the city had closed the business due to delinquency on payment of sales taxes for over two years or so. All the delinquent payments were posted on the entrance door.
So the next day I checked with the city admin to find out how they were allowed to operate so long without being hit with notices. Turns out the city relies on the state which relies on a business license. I still can't figure out how they got a go ahead from the health department and our fire marshall, how this all happened.
And I would agree that from the current appearances, somehow the issue of hours of SM's operation wasn't discovered for 3 years.
I am told the city only audits 9 or 10 businesses a year for sales tax compliance. The big boxes are compliant since they are national chains. The rationale given to me by the city admin is the city does not want to appear to be anti-small business. So one can only guess what is not reported in the city, especially on the cash end.
If you are looking for accountability in city government, let me know where you find it. There is no way the city gov reports signicant errors or mistakes to the city council unless there is a major blow up and it could become public. Then its usually damage control.
All I know is if I report something, I am usually told I am in error. Then 3 months later or so, the issue is sometimes addressed. Plausible denial is typical.
I was in SMS about 5mths ago after a late night out around 12-1ish and they were delivering out of the front door. I didn't notice any excessive noise, it sure wasn't as loud as sitting in the drive thru at mcdonalds, I'll tell you that much. I'm sure it's election year in the city so they will probably be made an example out of so someone can get a few more votes, but then again I'm under 30 years old and actually eat at this place so what would I know? I wonder how many DUI arrests and drunk driving accidents are avoided every year by these guys be open and delivering until 3 a.m., instead of their customers climbing behind the wheel of their cars to get something to eat?
Kerry, the BS the city gave you on the Bunker's Bagels situation sounds like a cop out.
The city's own website says a business selling tangible goods must obtain a sales tax license from the City Finance office. The state is not involved.
As a Home Rule city, Lafayette collects it's own sales tax and is responsible for enforcement.
Don't let them bluff you like that.
Anonymous,
The Daily Camera is doing a story on SM. The reporter visited the store today and called me this afternoon.
I told him what I would do if I was "king". So check the article tomorrow or the next day.
It may surprise you if he reports what I told him.
Congratulations to the Planning Commission for supporting SM. Thanks, Alex.
Talking with the owner on Monday, it appears there is a loophole in the city admin process. He bought the business from a previous owner. He did not know or was he ever required to apply for a special use permit regarding hours of operation as a new owner.
Now that the dust has settled, the PR the shop has gotten should help increase his business. Karma works in strange ways.
Just doing my job.
I'm going to make this short and sweet: There is no loophole in the City's process. What is evident is that the City will initiate enforcement action against land uses with scant evidence and/or with evidence that is more relevant or appropriate to take action under an entirely different legal process.
I can't say the exact extent to which political pressure or objectives unrelated to the actual land use issues played into either recent case that I'm thinking of, but I personally believe that the rule of law, our code, is in place to help draw the line between good cause and otherwise. Making every existing land use into a political issue is not the way to go.
Well, let's see. According to the owner, SM was operating as it was for over 3 years. The hours were inscribed on the door. Members of our police department were frequent patrons. He was filling a need or he would be out of business and was generating sales tax revenue. The strip mall there has had a lot of business turnover as well.
So the first point is that enforcement of special use agreements appears to be non-existent. And why was a small business owner treated this way?
having talked to the owner Monday, I surmised he was "terrified" of losing his business and everything he had worked for the past 3 years. He was trying to make a living, supporting his wife and kids. He clearly thought the deck was stacked against him and had not seen the staff report to the PC. The last few weeks had to have been pure misery for him.
I have not reached the point yet of not recognizing there are breadwinners and their families involved in stuff like this. He asked me what to do and I volunteered a few ideas.
Calling my comments political is strange. If one really wants to know what goes on in town, talk to a lot of small business owners who believe there are two sets of rules and the big boys get the breaks.
This is in a city that supposedly values its small town values. The good news is the outcome was a good one.
Kerry, I appreciate your belief that the outcome was good. I agree.
But, really, I'm trying to address your comments in a broader context. That way I don't have to speak to the question of how you can be on the side of both the business owner and the backyard neighbor.
I'm on the side of a rational, evidence-based land use process. If we have this, much heartache can be avoided.
Correct me if I'm wrong (like I have to say that on this blog), but the police aren't charged with enforcing these kinds of things, are they? Shouldn't that be the City Finance department? Along with sales tax license enforcement, sales tax remittance, etc.?
Police enforce the noise ordinance. Building and Planning has a position that is responsible for commercial zoning enforcement. In either case, a citation would be heard in municipal court.
Finance might get involved in delinquent sales taxes, but nothing like that was at issue at Silver Mine.
I'm on the side of the neighbor's right to file a complaint with the city. Dan, D-B, et al criticized the neighbor for doing that and said the neighbor should have worked it out with the owner. The neighbor also had the right to see if the use had been allowed for the past 3 years.
My comment about the police was that they were customers. A note of humor in that they knew about the store for 3 years and the Planning Department did not. Also if patroling late at night, they would know there was activity around the shop. Brings up the question was any enforcement ever requested or was the request ignored.
Finance would have known because of the sale tax collection (hopefully).
After the Bunker Bagel surprise, I recommended the city have the mall owners report once a year who their tenants are so things can be up to date.
As more and more retail gets developed next to established neighborhoods who don't welcome them, the friction is increasing.
Seems to me quality of life and thriving residential neighborhoods is playing second fiddle more and more these days. Quoting bible and verse on land use isn't always the best solution.
Interesting to me is that the only comment I made in my initial post today that had anything to do with your last 20,000 words on this issue, Kerry, was where I noted that there is no loophole in the City's land use process. The onus of due diligence is on the purchaser of any business dependant on a disretionary land use approval, to make sure it accommodates their business plan.
Other than that, I felt that I had promised to make a post responding to the content of Dan's initial posting, which I could not do prior to the public hearing.
If you thought I had you in mind when I said that "politics" could be made out of any issue when sketchy evidence is the basis of land use enforcement, that is something the psychoanalysts in the crowd will have to figure out. I was talking about land use policy, plain and simple.
You can accuse me of quoting chapter and verse on land use, and I'll take that as a compliment, because I do think it is a valuable perspective. And also the only way to get things done fairly. Your compliment on the outcome of the decision makes it hard for me to reconcile what I should do other than stick with my philosophy.
Should land use be all about politics and all about personalizing every issue with starving kids versus world-weary retirees? I think it's possible - and not just possible, it's best - to be sensitive to the needs of the community by respecting people's abilty to see a little deeper into these issues than you give them credit for in this type of situation.
Now, do you need the last word on everything, or can we just really agree that the outcome is really most important?
Post a Comment