At a special 7:30 am meeting on September 29, the Davis City Council approved an urgency ordinance that established a building and expansion moratorium for new bars, nightclubs and restaurants serving distilled spirits, and restaurants exceeding 2,500 square feet and serving beer and wine.
This moratorium was “intended to ‘press pause’ on bars, nightclubs, or buildings that could become bars or nightclubs pending a community discussion about the role of alcohol and nightclubs in Davis’s efforts to maintain a safe environment.” The moratorium is effective through November 13, 2015.
On October 6, 2015, the city received an exemption application for Blondies New York Pizza Co., for a restaurant, bar and nightclub to be located at 330 G Street, the prior location of Little Prague Bohemian Restaurant.
According to the City, “The Hardship Exemption allows a person to apply for an exemption from the moratorium on the grounds of economic hardship. The main purpose of the exemption is to permit the applicant to state why the delay associated with the interim moratorium would create an economic hardship that would warrant exemption from the interim moratorium and to state why a delay in pursuing a proposed use would be a ‘taking’ that would violate the law.”
The hardship exemption asks the applicant to address four issues as set forth below, so that the council may determine whether to grant the exemption and, if so, under what conditions.
Staff is recommending against the grant, arguing that the “conditional offer is (not) sufficient to support an exemption from the moratorium.” Staff does not believe that the conditional offer is sufficient to “assure compliance with any new regulations adopted by the City.”
Staff adds that they believe “this proposed agreement does not provide the City with the same authority the City would have if Blondies is not permitted to open until the City has determined what new zoning and operational regulations would apply to new nightclub uses and the moratorium is then dissolved.”
Staff continues, “The applicant has only said that it would comply (1) ‘at the effective date’ with future council ordinances (2) that are applicable to ‘all restaurants with ABC 47 licenses’ in the CC zone and that (3) ‘do not violate State or Federal Law’ and (4) are adopted within one year.” They add, “Blondies would not have to comply because new regulations would not apply to ‘all’ restaurants.”
The City says it has not completed its analysis to determine “the extent that it can or will regulate similar uses within the CC zoning district that are currently operating under different regulations.”
The City adds that it “has not determined whether it will establish standards for new uses that are different from existing standards, or different from the standards that will be applicable to any or all existing uses.”
Bill Kopper, a local attorney and former Mayor of Davis, represented the applicant at the September 29 meeting. He explained to council that they have already leased the site and want to construct a restaurant and sports bar. “Blondies is getting a permit to construct improvements and they would have had it weeks ago if not for delays in permit review at the fire department. This is a ministerial act, they have all of the zoning necessary to construct the restaurant.”
He noted, “Blondies is the only business affected from getting a building permit.” Mr. Kopper continued that his client would enter into a contract with the city to implement any new regulations on the day the business opens. “You don’t have to worry about the amortization issue as to his business,” he said. This “defeats the claim for this particular interim zoning ordinance.”
This issue, he pointed out, came up relatively recently when then-City Councilmember Don Saylor attempted to propose an interim ordinance to keep the hookah store at Fifth and G from opening in the city. He stated, “The city council wisely rejected it because it was an illegal spot zone and in fact this is essentially a taking of my client’s property.”
The spot has been vacant for over a year, Mr. Kopper pointed out, and owners have had difficulty leasing it. “The Little Prague space has become a blight frankly,” he said. “It’s only days now before there are going to be boards in the windows – it’s in terrible terrible shape.”
He said they have the zoning and they will agree to any new regulations that are passed.
Councilmember Lee didn’t want to single anyone out, but said there are a number of restaurants downtown that “past a certain point they become nightclubs.” He argued this was a much bigger issue that needed to be addressed comprehensively.
He said he was impressed that the applicant would be willing to adhere to the regulations right away, and he asked the city attorney if there was a way they could “allow people to move forward during this period if they could agree to sign onto” any new regulations.
Harriet Steiner noted that the applicant could apply for a hardship situation which would allow people with pending permits to petition the city to recognize that the moratorium constitutes a hardship and the council, after a ten-day notice and hearing, could grant an exception to the moratorium. She believes the council could condition that exception to go forward in a binding manner.
In their application, Blondies writes, “330 G Street faces severe economic hardship as a result of the moratorium. There are immediate, specific, and recognized losses of $98,981.52. Add that figure $3000 per week in rent and the increased costs of rehiring contractors and it is clear that 330 G Street faces severe economic hardship.”
They add, “This does not even address the hardship of those future employees who, while technically not part of this appeal, stand to lose a crucial source of income in their immediate future.”
Staff, however, recommends that “the City Council deny the application for a hardship exemption” and make the following findings:
- That the 45-day delay imposed by the moratorium, and possible extension(s), do not cause an economic hardship warranting an exemption to the moratorium, because delays in permitting and construction are common occurrences and a standard component of business operations.
- That the delay imposed by the moratorium does not cause harm to Naka Davis because the landlord is currently receiving rent and the landlord continues to own the property which can be put to other legal uses or developed for other legal uses.
- That the assertion by the applicant that the moratorium is unnecessary because “Blondies has agreed to comply with any future regulations” is inaccurate, because of the provisions applied to the applicant’s suggested condition.
—David M. Greenwald reporting